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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Translation of Judgments: International Criminal Court (ICC)

Kritika Sharma

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 12 February 2025

Subject(s):
Access to justice — Equality before the law — Languages, regional or minority — Deliberation and drafting — Judgments — Translations

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

‘The function of a legal translator is to match the degree of fuzziness, because that is where the judicial debate happens’ (Swigart, 2019, 279).

Translation is an intricate exercise. However, this can be particularly difficult when the subject of translation is riddled with technical terminology. This is the case within law in general and it is especially true for international law, which, by its nature, is angled towards multilingualism—or at least ought to be. The fact that law often finds itself embroiled in a battle of semantics makes the translation of judgments all the more delicate an exercise. Add to this the fact that decisions by international criminal courts and tribunals have a direct bearing on the physical liberty of individuals, and you know you have your work cut out for you as a translator.

The International Criminal Court (ICC) (‘the Court’) was established to create a permanent criminal court that would ideally exercise broad, if not universal, jurisdiction over egregious crimes under international law. Integral to its nature both as an international organization, and as a court with broad jurisdiction, the ICC was created as a multilingual institution. With two working languages and six official languages, interpretation and translation plays an intrinsic role in its operation. In practice, the classification of languages is fourfold, based on the division of the Court’s translation work: (i) official languages, (ii) working languages (Working Language), (iii) situation languages; and (iv) judicial cooperation languages (Tomic and Beltran Montoliu, 2013, 224). While the Court has all six United Nations (‘UN’) languages as its official languages, English and French are the two working languages of the Court. Languages that are used during investigations as well as proceedings before the Court ‘when suspects or witnesses do not fully understand one of the working languages of the Court’ are often referred to as ‘situation languages’ (Tomic and Beltran Montoliu, 2013, 230). Languages used for facilitating cooperation between States and the Court are instead frequently referred to as ‘judicial co-operation languages’ (Tomic and Beltran Montoliu, 2013, 228). The present entry focuses on the first three categories of languages: official, working, and situation languages.

Instead of the broader translation regime of the ICC (Translation: International Criminal Court (ICC)), this entry focuses on a specific aspect of this regime, namely the translation of judgments and certain other decisions. Therefore, the translation of other documents, press releases, and evidence is beyond the scope of this entry.

This entry elaborates on the legislative history encasing the present legal regime governing translations of judgments, exploring the objectives underlying their translation. It delves into an analysis of the translation process following the classification of languages set out above at paragraph 3, as well as the nomenclature used by the ICC itself to describe decisions. It addresses certain challenges and issues that the translation of judgments raises and ends with concluding remarks.

B.  Legislative History

1.  Official and Working Languages of the Court

The Draft Statute of the International Law Commission (ILC) envisaged two working languages, with no mention of separate official languages of the proposed court (Report of the ILC on the work of its Forty-Sixth Session, 1994, 35 (‘ILC Draft Statute’)). The Report of the Ad Hoc Committee does not appear to address this aspect (Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, 1995 (‘Ad Hoc Committee Report’)). Within the format of the Preparatory Committee, Australia and the Netherlands submitted a ‘Working Paper’ with a draft set of ‘Rules of Procedure and Evidence’ for the proposed court, including both working and official Languages of the Court. This proposal was more composite than the provision on ‘languages’ under the Rome Statute of the International Criminal Court, 1998 (‘Rome Statute’), as it comprised most of the language-related provisions under one rule. It specifically referred to the right of the accused to ‘use his or her own language and to have the benefit of interpretation and translation’ with reference to the corresponding right under the ILC Draft Statute (Working paper submitted by Australia and the Netherlands, 1996, 10–11; Art X (A.41.1 (f)) ILC Draft Statute; Bassiouni and Schabas, 2016, 403).

The Zutphen Draft simply mentioned that English and French were to be the two working languages of the Court (Report of the Inter-Sessional Meeting from 19 to 30 January 1998 in Zutphen, Netherlands (‘Zutphen Draft’), 1998, 82). The Report of the Preparatory Committee similarly only refers to the working languages of the Court—English and French—along with the possibility for the Court to allow the use of another language by a party at their request (Report of the Preparatory Committee on the Establishment of an International Criminal Court (‘Preparatory Committee Report’), 1998, 41).

At the Rome Conference, Andorra, Argentina, Bolivia, Chile, Colombia, the Dominican Republic, El Salvador, Guatemala, Panama, Paraguay, Peru, Spain, Uruguay, and Venezuela proposed using the six official languages of the UN as official languages of the Court, while using English and French as its working languages. This proposal included ‘the right of a person under investigation to be interrogated and to express himself or herself in his or her own language, without charge whatsoever to that person’ (Proposal relating Official and Working Languages submitted by Andorra and others, 1998, 1). The provision eventually adopted under the Rome Statute comprises both working and official languages of the Court. This decision aligns the Court, to this extent, with the Inter-American Court of Human Rights (IACtHR) and the African Court on Human and Peoples’ Rights (ACtHPR), unlike the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and Special Court for Sierra Leone (SCSL) that only have working languages and the International Tribunal for the Law of the Sea (ITLOS), International Court of Justice (ICJ), and the Appellate Body of the World Trade Organization (WTO) (Appellate Body: Dispute Settlement System of the World Trade Organization (WTO)) that only have official languages (BIIJ, 2009, 2).

2.  Linguistic Rights of the Accused under Article 67 of the Rome Statute

In earlier drafts of the Rome Statute, such as in the Draft Report of the Preparatory Committee prior to the Rome Conference, the texts circulated amongst States contained a more detailed provision than that under the Rome Statute, concerning the right of the accused to have access to translations of certain documents free of charge. According to this, the accused would be entitled:

[t]o be informed promptly of the nature and cause of the charge against him or her [and be questioned in a language which he [or she] understands, and, to this end, to be provided free of charge with a translation of the documents on the basis of which he is being questioned or that show why a measure infringing upon his liberty or property has been proposed] (Preparatory Committee Report, 1998, 50).

10  This would warrant translations of all decisions on detention, measures of financial constraint, and restrictions on physical liberty. As a corollary, therefore, this text would have entailed greater discretion to grant requests for translations and interpretation. However, this phrasing was accompanied by brackets implying that there was no agreement amongst States on this.

11  In relation to the rights of a ‘person suspected of a crime under this Statute’, there was also the use of the expression ‘his or her language’ albeit bracketed. According to this text, such persons would have the right, if ‘questioned in a language other than [a language the person understands and speaks] [his or her own language], to have, free of any cost, the assistance of a competent interpreter and a translation of any document on which the person is to be questioned’ (Preparatory Committee Report, 1998, Addendum 1, 79).

12  A key difference between these previous drafts and the right under Article 67 (1) (a) Rome Statute is that the latter requires the accused to be informed of the charges against him or her in a language he or she fully understands and speaks.

13  The ILC Draft Statute comprised a provision quite similar to the one under Article 67 Rome Statute, specifying the right of the accused to have the assistance of ‘a competent interpreter or such translations as are necessary to meet the requirements of fairness’ (Art 41 (1) (f) ILC Draft Statute). Therefore the requirement in the ILC Draft, while still cumulative, was lower than that of ‘fully understands and speaks’ finally adopted in the Statute.

14  Similarly, the Zutphen Draft’s proposal for Article 67 Rome Statute and the Report of the Preparatory Committee do not mention the term ‘fully’, and use no brackets whilst using the term ‘language the accused understands and speaks’. Nonetheless, the provision finally adopted refers to a language that the accused fully understands and speaks, which increases the protection accorded to the accused. This change was made through the ‘Text Transmitted by the Drafting Committee to the Committee of the Whole’ (Bassiouni and Schabas, 2016, 588).

15  The judges at the Court have recognized the need further to clarify and establish the meaning of the phrase ‘fully understands and speaks’ in the most recent version of the Chambers Practice Manual (Chambers Practice Manual, 2019, 2–3). At present, translations at the ICC are driven by the requirement that all judgments and certain types of decisions must be translated into the official languages of the Court, which extends to the rights of the accused to understand the charges against him or her and the ability to participate in his or her defence.

C.  Objectives

16  The language regime of the Court therefore strives to protect two sets of objectives and interests. The first set is rooted in the ICC’s nature as an international organization and strives to make it visible, particularly to communities affected by the crimes under its jurisdiction (Legitimacy of International Adjudication). The second set has a human rights dimension and is embedded in the ICC’s nature as a criminal court. This involves the rights of the accused to understand and participate in the process (Due Process). The two categories are tempered with the need to economize and use the Court’s resources judiciously (Schabas, 2015, 802) (Financial Aspects of International Adjudication). This rings particularly true since the resources available to the Court have often been described as limited, including by the Court itself (Situation in the Islamic Republic of Afghanistan, 2019, 30–31), and in light of translation being an expensive exercise.

D.  Official and Working Languages

17  According to Article 50 Rome Statute all judgments and decisions ‘resolving fundamental issues before the Court’ are to be published in each of the official languages of the Court: Arabic, Chinese, English, French, Russian, and Spanish. The creation of the two categories of official and working languages alone differentiates the language regime at the ICC from that of Ad Hoc Tribunals, which followed the practice regime at the ICJ of employing French and English as working languages with no official languages. However, given its aim of being a bilingual Court with its two working languages, the ICC differs from the ICTY (Report of the Court on Options for Outsourcing Translation Work, 2008, 4). While both French and English were official languages at the ICTY, English appears to have been treated as a working language. Bosnian-Croatian-Serbian (‘BCS’) has also been referred to as a de facto working language at the ICTY (Karagiannakis, 2016, 1325; Shahabuddeen, 2012, 20). At the Special Tribunal for Lebanon (STL) however, the Statute of the Special Tribunal for Lebanon (‘STL Statute’) sets out three official languages, ie Arabic, French, and English, and allows for the Pre-Trial Judge or Chamber to decide that one or two of these languages may be used as working languages during the proceedings (Art 14 STL Statute).

18  Apart from establishing both official and working languages of the Court, the Rome Statute also creates further categories of decisions that warrant translation. Translation is mandated for all judgments and decisions ‘resolving fundamental issues before the Court’. Rule 40 Rules of Procedure and Evidence of the ICC (‘ICC RPE’) adds to Article 50 (1) Rome Statute by listing decisions that qualify as those that ‘resolve fundamental issues’. These include:

  1. (a)  All decisions of the Appeals Division;

  2. (b)  All decisions of the Court on its jurisdiction or on the admissibility of a case pursuant to articles 17, 18, 19 and 20

  3. (c)  All decisions of a Trial Chamber on guilt or innocence, sentencing and reparations to victims pursuant to articles 74, 75 and 76;

  4. (d)  All decisions of a Pre-Trial Chamber pursuant to article 57, paragraph 3 (d).

19  In addition Rule 40 ICC RPE further states that decisions on confirmation of charges (Art 61 (7) Rome Statute; Confirmation of the Charges Before Trial: International Criminal Court (ICC)), as well as decisions concerning offences against the administration of justice (Art 70 Rome Statute) must be published in all the official languages of the Court subject to a determination by the Presidency that these ‘resolve fundamental issues’. Last, this rule grants the Presidency the discretion to decide whether other decisions that ‘concern major issues relating to the interpretation or implementation of the Statute or concern a major issue of general interest’ should be published in the official languages.

20  Therefore, Rule 40 ICC RPE effectively establishes three categories of decisions warranting translation and the corresponding powers or discretion of the Presidency in this regard. The first category covers decisions that clearly qualify as those resolving fundamental issues. The second covers two kinds of decisions which may or may not qualify as such and concerning which the Presidency has to determine if they resolve fundamental issues. The third and last category appears broader than those resolving fundamental issues and includes decisions that involve major issues vis-à-vis the interpretation or implementation of the Statute or involve a ‘major issue of general interest’. This last category appears to afford the Presidency a greater degree of discretion.

21  In the context of working languages, Rule 41 ICC RPE elaborates the circumstances under which the Presidency must authorize the use of an official language of the Court as a working language of the Court as well as the circumstances where the Presidency may do so. The former involves two instances: first, situations where any participant requests this and the language is both ‘understood and spoken by a majority of those involved’ in the case; second, when either the Prosecutor or the defence makes this request. Rule 41 (2), on the other hand, accords the Presidency discretion to authorize the use of official languages as working languages in situations other than the two specified above, if it determines that this would ‘facilitate the efficiency of the proceedings’.

22  The obligation of ensuring that the decisions which the Rome Statute and the ICC RPE require to be translated into the official and other working languages of the Court rests with the Registrar of the Court. This is reiterated through Regulation 40 (6) Regulations of the ICC. The Regulations of the Registry further set out the modalities pertaining to translation (Regulation 70 Regulations of the Registry). This includes definitions of the various stages of the translation process such as revision, editing, and proofreading, the latter two being monolingual processes.

E.  Situation Languages

23  The legal framework of the Court makes it possible to use a language other than the working, or official, language of the Court where the accused or witnesses do not fully understand and speak either English or French. Examples of these include Lingala, Swahili, and Acholi. These are often referred to as ‘situation languages’. Translations into situation languages may prove to be more difficult than translations between the working languages of the Court. This is because these might involve the use of languages that are less widely spoken than official or working languages of the ICC (Registry of the ICC, 2010, 25). These are also referred to as ‘languages of lesser diffusion’ (Swigart, 2019, 275).

24  Translation can be more cumbersome when a ‘language of lesser diffusion’ is involved. For example, in Banda the Decision on the Confirmation of Charges (‘DCC’) had to be translated into Zaghawa (Prosecutor v Banda and Jerbo, Reasons for the Order on translation of witness statements (ICC-02/05-03/09-199) and additional instructions on translation, 2011 [‘Banda, Reasons for Order on Translation’], para 39). However, as Zaghawa does not have a written variant, translation was done by audio means and markings on the written version. The 140-page DCC is purported to have taken six months to translate (Swigart, 2019, 281). It should be borne in mind that the more recent DCCs filed by the Prosecutor have been much lengthier (Prosecutor v Al Hassan, Decision relative à la ‘Requête de l’Accusation sollicitant l’augmentation du nombre de pages autorisées pour le dépôt du Document contenant les charges’, 2019, 13).

F.  Translation into Official Languages

1.  Judgments and Decisions Resolving Fundamental Issues

25  As referred to above, the Rome Statute distinguishes between judgments and decisions. For example, Article 50 states ‘[t]he judgments of the Court, as well as other decisions resolving fundamental issues before the Court, shall be published in the official languages’. Therefore, for the purpose of translations the decisions of the Court can be divided into three categories: those that qualify as ‘judgments’; ‘decisions that resolve fundamental issues’; and other decisions.

2.  Fundamental Issues

26  According to Karagiannakis, this does not simply imply decisions resolving an important issue in a particular case but rather decisions ‘with a wider impact’ such as those concerning the Court’s jurisdiction, involving the interpretation ‘of an element of the Statute’ or establishing ‘an important principle’ (Karagiannakis, 2016, 1326).

27  Rule 40 ICC RPE enumerates in greater detail the types of decisions that fall under this category, essentially leaving little discretion to the Presidency, contrary to how it appears under the Statute. These decisions, where the Presidency exercises limited discretion, include four types of categories listed above (see para 18), including all decisions by the Appeals Division. The second category of decisions where the Presidency may exercise discretion includes decisions on confirmation of charges and decisions on Article 70 offences or ‘offences against the administration of justice’. However, concerning the latter, the Judgment in Bemba and others appears only to have been published in the two working languages of the Court, English and French, with the French version listed as a translation (Prosecutor v Bemba Gombo and others, 2016).

28  As regards the decisions on confirmation of charges, arguably these ought to be subject to translation not only into the official languages of the Court, but also into what are often referred to as ‘situation languages’ or languages that the accused fully understands and speaks, the latter being in light of Article 67 Rome Statute and the fact these decisions set out the offences with which the accused is charged and ‘define the scope of the trial proceedings’ (Banda, Reasons for Order on Translation, 22). Rule 40 ICC RPE also includes a residual clause allowing the Presidency greater discretion to decide whether other decisions might qualify as those resolving fundamental issues.

G.  Translation into the Language the Accused ‘Fully Understands and Speaks’

29  These include translations into the working languages of the Court as well as into ‘situation languages’. Apart from the requirement that judgments and decisions be published in the official languages of the Court, translation during the proceedings appears predominantly driven by the need to safeguard the rights of the accused. Article 55 (1) (c) specifies that if in relation to an investigation a person is questioned in a language other than one they fully understand and speak, they have the right to interpretation and translations ‘as are necessary to meet the requirements of fairness’. The ICC has interpreted this in a manner consistent with the jurisprudence of the European Court of Human Rights (ECtHR) while acknowledging the higher standard adopted under the Rome Statute (Dingfelder Stone, 2018, 30; Prosecutor v Lubanga Dyilo, 2006, 466; Prosecutor v Katanga, Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber entitled ‘Decision on the Defence Request Concerning Languages’, 2008 [‘Katanga Decision on Defence Request Concerning Languages’], 21; Lubanga Case; Katanga Case).

1. ‘Fully Understands and Speaks’

30  The Court has referred to this requirement by emphasizing that the standard adopted at Rome was ‘fully understands and speaks’. The Court referred to the difference between the English and French versions of the Rome Statute in this regard. The French text employs the word ‘parfaitement’ while the English text uses ‘fully’. However, the Court found that it was not necessary for it to go any further into the difference between the two words and that it was sufficient to state after referring to definitions of these terms, ‘that the standard that must be required under Article 67 is very high’ (Katanga Decision on Defence Request Concerning Languages, 19). Further, the Court held that the legislative history of this provision confirms that the intention of the States was to raise the standard of understanding. The Court also confirmed that while the provision concerning interpretation and translation was similar to those provided for at other courts and tribunals, it said that the jurisprudence from these courts and tribunals could only be afforded limited importance in view of the higher standard under the Rome Statute. After reiterating that it was the accused who was exclusively ‘the subject of understanding’, the Court stated that it must accord:

the accused’s claim that he or she cannot fully understand and speak the language of the Court. This is because it is the accused who can most aptly determine his or her own understanding and it should be assumed that he or she will only ask for a language he or she fully understands and speaks (Katanga Decision on Defence Request Concerning Languages, 26).

31  Thus, the Court finally interpreted the term by stating that:

[a]n accused fully understands and speaks a language when he or she is completely fluent in the language in ordinary, nontechnical conversation; it is not required that he or she has an understanding as if he or she were trained as a lawyer or judicial officer. If there is any doubt as to whether the person fully understands and speaks the language of the Court, the language being requested by the person should be accommodated. Ultimately, the Chamber in question is responsible for ensuring the fair trial of the accused (Katanga Decision on Defence Request Concerning Languages, 26).

32  However, in practice the actual assessment of this is on a case-by-case basis, and the Court seems to favour the use of a working language of the Court where possible. There also appears to be a practice of partial translations and non-simultaneous translations.

2.  Decisions Warranting Translation under Article 67

(a)  Decisions on Confirmation of Charges

33  As mentioned above (see para 28), decisions on confirmation of charges warrant translation not only into official languages of the Court but also into the language of the accused. Although these are not judgments, in light of Article 67 translating them into a language that the accused fully understands and speaks would appear essential. The ICC has, through its decisions, issued specific instructions in relation to the translation of the ‘Decision on the Confirmation of Charges’ (Banda, Reasons for Order on Translation).

34  The Pre-Trial Chamber in Bemba held that the period for filing an appeal against the confirmation decision would start only once Mr Bemba was notified of the French translation of the decision confirming the charges against him (Prosecutor v Bemba Gombo, 2009, 185). It is difficult to say, however, whether the Court’s approach would have been the same towards the period for the Prosecutor to file an appeal had the decision of the Chamber been not to confirm the charges against the accused. In Mbarushimana, where the Pre-Trial Chamber decided not to confirm the charges against the accused, the Chamber stated that the five-day period to apply for leave to appeal would start for the defence upon notification of the French translation of the decision not to confirm the charges. In the same decision, the Chamber also ordered the Registrar ‘to arrange for an expedited translation’ of the decision (Prosecutor v Mbarushimana, 2011, 149).

35  Dominic Ongwen, for example, was presented with an Acholi version of the decision confirming the charges against him, albeit it was only partial (Swigart, 2019, 281).

36  However, while both versions of decisions bear the date on which the decision was delivered in its original language, the translations do not appear to have been filed simultaneously and appear to have been notified months later. For example, in Yekatom and Ngaïssona, the French translation of the decision on confirmation of charges appears to have been published in March 2020, while the original was delivered in December 2019 (Prosecutor v Yekatom and Ngaïssona, 2019).

(b)  Warrants of Arrest

37  Thus given that the decision on confirmation of charges is usually the first decision of the Court that sets out definitively the specific charges that stand against the accused, it seems only natural that an assessment of the translation of judgments and decisions regime includes the translation of these decisions. Following the same logic would similarly mandate the translation of the warrant of arrest by the Court as an imperative (Rule 187 ICC RPE). Not allowing for these to be translated into a language that the accused fully speaks and understands appears to be counterintuitive and contrary to the established interpretation of Article 67, as well as not in line with the ordinary meaning of its text. The warrant of arrest for Joseph Kony, for example, was also translated into Acholi (Stahn and Sluiter, 2009, 569).

H.  Drafting of Judgments and Decisions: Practical Implications of the Translation Process

38  Article 74 Rome Statute deals with the requirements of decisions. That the Article does not employ the term ‘judgment’, however, implies that this concerns the entirety of the proceedings, the Trial Chamber, and the evidence submitted ‘at the Trial’. This, as well as the fact that it shall contain a full and reasoned statement of the Trial Chamber’s findings on the evidence and conclusions, has been taken as referring to a decision on the criminal responsibility of the accused. Further, the Spanish text of the Statute uses ‘fallo’ which has been used to argue that this includes judgments (Triffterer and Kiss, 2016, 1830). Decisions on the guilt or innocence of the accused are published as ‘judgments pursuant to Article 74’, even though the term is not used in the Rome Statute for such decisions by the Trial Chamber. While referring to the Appeals Chamber, the Statute uses the terms ‘judgment’ (Art 83 Rome Statute) and ‘final judgment’ (Art 84 Rome Statute). Nevertheless, Article 74 is silent on languages and translations. Rule 144 (2) (b) ICC RPE specifies that the accused is to be provided with a translation of a decision under Article 74 Rome Statute on his or her criminal responsibility, if this is necessary to meet the requirements of a fair trial under Article 67. In interpreting the obligation under Rule 144 (2) (b), the Court has stated that what is essential is ‘for the Chamber to ensure that the accused is provided with a translation of the Article 74 decision in circumstances that protect the fairness of the proceedings’ (Prosecutor v Lubanga, Decision on the translation of the Article 74 Decision and related procedural issues, 2011 [‘Lubanga Decision on Translation’], 12).

39  The legislative requirements thus make it possible for most judgments and decisions to be drafted first in one of the Court’s working languages and then translated into the other (Lubanga Decision on Translation, 15). For example, the decision in Lubanga, the first case before the Court, was drafted in English. During the process, the Court considered whether it was necessary for it to issue the French and English versions of the Judgment simultaneously. The Court addressed two key questions. First, whether it would be permissible or fair to issue the judgment in English and move to the next phase of the case, either sentencing or releasing the accused, prior to the French translation being available to the parties and participants. Second, whether a judgment first in English without a simultaneously issued French translation would have had implications on any subsequent Appellate proceedings. The Court noted that Rule 144 (2) (b) required Article 74 decisions determining the criminal responsibility of the accused be provided to the accused in a language he fully understands as soon as possible, should this be necessary to meet requirements of fairness under Article 67. Accordingly, the Court noted that the ‘relevant official language’ for Mr Lubanga and his legal team was French.

40  The Court answered the first question in the affirmative stating that this was clearly permissible in accordance with the Rome Statute. Further, although the Court decided that ‘there are no concerns as to fairness’, it decided this whilst ‘bearing in mind the support of the parties and participants for this approach’ (Lubanga Decision on Translation, 12). Therefore, this would make it possible for the Court to have arrived at a different conclusion had the parties and participants not agreed to this. The Court thus held that it would need to proceed to the next phase, mentioning the need to avoid a delay in the proceedings. Nonetheless, the Court mentioned certain safeguards that would need to be put in place to enable the accused and his or her counsel to prepare for the next phase of proceedings in case of a conviction. These safeguards included a partial translation of the judgment as identified by the defence and did not apply in case of an acquittal. In practice, the judgments and decisions of the Court have specified that they have been done in both English and French with one of the two languages being the authoritative version. This has clearly been developed through practice, as it is not provided for in the legal texts of the Court. It has been argued that this could assist in the interpretation of the judgments and decisions of the Court and in ascertaining the intention of the judges, particularly should there be any discrepancy between the two texts (Schabas, 2015, 805).

1.  Deliberations and Decision-making

41  It emerges that judgments are drafted by the judges in one language and then sent to the Court Interpretation and Translation Section for translation into the other working language(s). The judges, however, are required to ‘have an excellent knowledge of and be fluent in at least one of the working languages of the Court’, which means that judges must be fluent in only one of the two working languages of the Court (Assembly of States Parties, Note Verbale, 2019). This can be reinforced through reports of the Advisory Committee on Nomination and Election of Judges (‘ACN’). The Committee appears to assess the language proficiency of the candidates through interviews. However, interpretation services are provided during these interviews. Further, according to the ACN in its report, interpretation was essential as candidates had requested it in the past (Report of the Advisory Committee on Nominations of Judges on the work of its third meeting, 2014, 14). This makes it possible for the 18 judges not to be all bilingual. Further, it makes it equally possible for the three judges composing a Trial Chamber for example, to be fluent in different languages. In light of the fact that the Rome Statute stipulates that there must be one decision rendered on the criminal responsibility of the accused which must be in writing and reasoned (Art 74 Rome Statute), it seems inevitable that the composition of the Chamber has an effect on the process through which the judgment is drafted and submitted for translation.

42  There might also be instances where judges whose dominant language differs from that of the situation including the language in which most of the evidence is in (Tomic and Beltran Montoliu, 2013, 224–25). This would make it especially vital that the staff assisting the judges be at least bilingual. Most vacancy post descriptions, including internships and visiting professional positions within Chambers, state under ‘knowledge of languages’ that ‘[p]roficiency in one of the working languages of the Court, French or English, is required. Working knowledge of the other is desirable. Knowledge of another official language of the Court (Arabic, Chinese, Russian, and Spanish) is an asset’ (ICC Website, Career Portal, 2020, Job Req ID 19341). While this does not make it mandatory that the candidate be bilingual, it is possible that the recruitment process caters for this, as well as the fact that the qualifications might vary based on the recruitment needs within Chambers. In any case, the Staff Rules of the Court provide for language-based incentives for both G level and Professional and higher-level positions. This would therefore apply to all staff within Chambers. However, as acknowledged in the Report to the Assembly of the States Parties on outsourcing translation work, the staff recruited at the Court have been described as being overwhelmingly English speakers. It was noted, as of 2008, that the bilingual objectives of the Court were far from being attained and that the absence of staff who were bilingual was being compensated for by overburdening the translation unit within the Court Interpretation and Translation Section (Report of the Court on Options for Outsourcing Translation Work, 2008, 4). This has also resulted in a need to translate administrative orders (Schabas, 2015, 805).

2.  The Process: The Court Interpretation and Translation Section

43  As mentioned above (see para 22), the Registry is mandated with providing official translations of the judgments and decisions that warrant such translations as per the legal framework of the Court (Regulation 72 Regulations of the Registry). As a natural consequence, the Court Interpretation and Translation Section that provides the Court with the necessary language related assistance and services is located within the Registry of the Court. Thus, the Interpretation and Translation Section provides the Court organs other than the OTP with language related services including translation and interpretation. Vis-à-vis the former, this includes in particular, the Presidency and Chambers of the Court. The Office of the Prosecutor (‘OTP’) has its own Language Services Unit (‘LSU’), in consonance with the principle of ensuring independence of the Office (Registry of the ICC, 2010, 25). The section has seven units, and the process appears to be conducted in teams, at least for decisions over 100 pages. In such instances, there is also a project manager who divides the tasks amongst the team and the process involves a layered approach to tasks with revision taking place in sections before the translation is complete, and proofreading taking place after revision of the text (Swigart, 2019, 279).

3.  Delay in Translations

44  The translations of the decisions do not appear to be delivered simultaneously with the decision in its original language. At the ICTY, in 1995, Judge Jules Deschênes wrote a separate opinion stating that while he agreed with the conclusions of the Appeals Chamber, he found himself

in disagreement with the single linguistic mould into which this decision has been cast. This offends two principles which should direct the Tribunal’s conduct:

  1. (a)  the simultaneous publication of the English and French texts of the Judgements of the Tribunal;

  2. (b)  the equally authoritative character of both texts.

Most regretfully both principles are breached to-day. The Appeals Chamber renders its Judgement in English only, it endows this sole version with the character of authenticity and foresees that a non-authentic French version of its Judgement will be published at a later date. The Tribunal’s other language is thus relegated to the role of a tool of questionable usefulness, contrary to the spirit and the letter of the instruments which ought to guide the Tribunal’s action (Prosecutor v Tadić, Separate Declaration of Judge J Deschênes on the Defence Motion for Interlocutory Appeal on Jurisdiction, 1995, paras 2–3; Tadić Case).

45  However, the ICC’s practice appears to follow a similar practice to that with which Judge Deschênes expressed dissatisfaction. This is where complete translations of the judgments and decisions are not issued at the same time as the judgment in its original language. It should also be noted that this is often in English. This was also discussed in the example of Lubanga discussed above.

46  The Court has often referred to the need to avoid delay by waiting for the translation of a judgment, such as in Lubanga where it considered it necessary to move to the next phase, prior to the French translation of the judgment being available. Apart from being cost-intensive, the translation of judgments and decisions is also quite time consuming (BIIJ, 2009, 3).

47  It has been speculated that translation, and the fact that the Court is multilingual, contributes to any delay in its process (Namakula, 2014, 17). A single judgment can take four months for translation in the Court’s own estimation (Prosecutor v Lubanga, Scheduling order for a status conference on the translation of the judgment, 2011, 3). However, there are other accounts of this having taken between six to eight months. On the implications for appellate proceedings in the case of the English version of the judgment being delivered prior to the French translation, the Court held specifically for the defence that, since the accused had limited or no ability to read in English, the time limit for filing such an appeal would commence upon the notification of the French translation to the accused by the Registry.

48  It has been suggested that, in order to improve the translation process at the ICC, translators should be provided with sections of the relevant judicial texts, or even sections or drafts of the judgment, on a progressive basis. According to Swigart, translators would ideally ‘have the opportunity to consult those drafting the judgments’ (Swigart, 2019, 293).

I.  Concluding Remarks

49  That the ICC finds itself in a multilingual environment is intrinsic to its nature as an international criminal court and international organization. In light of its jurisdiction that is, and definitely was intended to be, geographically wide ranging, the importance of translation of its judgments and decisions cannot be overemphasized. The structure of the Court Interpretation and Translation Section and the process followed at the ICC for the translation of judgments and decisions appears to have developed greatly in this regard. It has been alluded that translation processes in general help ‘enhance the quality’ of judgments or decisions. This is on the basis that during the process when faced with difficulties, translators in general might raise questions which might result in ‘revisions’ in the original text of the judgment, including at the ICC (Brandeis University, Interview with Alexandra Tomic, 2016, 26; Swigart, 2009, 280; BIIJ, 2009, 2; Regulation 71 Regulations of the Registry).

50  Yet, this procedure faces several challenges and continues to raise certain questions. Some challenges are based on the nature of legal translation in general. This pertains to the fact that sometimes it is difficult to translate various legal terms from one language to another, for example from English to French (BIIJ, 2009, 2; Tomic and Beltran Montoliu, 2013, 232–39). In this regard, it ought to be noted that the English and French texts of the Rome Statute itself include discrepancies. For example, the English text states under Article 66 that ‘[i]n order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt’; whereas according to the French text of the Statute, ‘la Cour doit être convaincue de sa culpabilité au-delà de tout doute raisonnable’. Effectively, the two versions of the Statute might be interpreted as setting down different standards. The Court referred to the requirement of an accused being proven guilty ‘au-delà de tout doute raisonnable’ in Ngudjolo (Prosecutor v Ngudjolo, 2012, para 490). The English translation of this decision however used the term ‘beyond reasonable doubt’ consistent with the English text of the Rome Statute. Other challenges pertain to the predominant use of one language over the other. The Court appears to work predominantly in English. This falls in line with the overall dominant use of English across international courts and tribunals (BIIJ, 2009, 5). However, apart from this being contrary to the multilingual aspirations envisaged for the Court as an international organization, this would also appear odd in view of the active jurisdiction of the Court, which includes jurisdictions that are predominantly Francophone such as the Democratic Republic of Congo (Tomic and Beltran Montoliu, 2013, 225). Further, the dominant use of English at international courts and tribunals in general has also raised questions as to the whether this could accord common law a preferred position over civil law. At the ICC, where the possibly perennial tussle between common law and civil law is far from being declared benign, this might warrant particular consideration (Judge Schmitt, 2019; Lentner, 2019).

51  Irrespective of these challenges, in terms of the kinds of decisions that are categorized as warranting translation, there is a clear objective of ensuring the rights of the accused under the regime established by the Rome Statute and legal texts of the Court. A relatively wide range of decisions have been granted this status however, there appears to be some deficiency in this regard. This is particularly in relation to the decisions and orders of the Court pertaining to detention. This could be based on two factors. First, that the nomenclature used for such decisions might exclude their translation which poses a problem in itself. This would allow the Court to evade this obligation by adapting nomenclature other than decisions, and the like. The second is more obvious, which is that the issuing authority of such decisions is often the Registry, including the Chief Custody Officer of the Detention Centre. However, this has the effect of denying the accused the right to understand measures imposed on him or her, that almost certainly involve questions pertaining to the deprivation of his or her physical liberty (eg Prosecutor v Bemba Gombo, 2008).

52  In light of the fact that such decisions to authorize the use of the language that the accused fully understands, ie languages other than English and French, have financial repercussions, this might in reality affect the balance of considerations or threshold for granting such requests. Whatever the weight attributed to judicial economy and the question of resources, it would be difficult to imagine that these considerations would be allowed to outweigh the need to ensure a fair trial. However, perhaps in practice this does impact the manner in which the concept of ‘fair trial’ is interpreted.

Kritika Sharma Translation of Judgments: International Criminal Court (ICC)

Cited Bibliography

  • Brandeis Institute for International Judges (BIIJ), Language and International Courts (2009).

  • C Stahn and G Sluiter (eds), The Emerging Practice of the International Criminal Court (Brill Leiden 2009).

  • M Shahabuddeen, International Criminal Justice at the Yugoslav Tribunal: A Judge’s Recollection (OUP 2012).

  • A Tomić and A Beltrán Montoliu, ‘Translation at the International Criminal Court’ (2013) 1 New Trends in Translation Studies 221–42.

  • CS Namakula, Language and the Right to Fair Hearing in International Criminal Trials (Springer International Publishing Switzerland 2014).

  • MC Bassiouni and W Schabas (eds), The Legislative History of the International Criminal Court (2nd revised and expanded edn Brill Leiden 2016).

  • Brandeis University, ‘The Ad Hoc Tribunals Oral History Project, An Interview with Alexandra Tomic’ (International Centre for Ethics, Justice and Public Life 2016).

  • M Karagiannakis, ‘Article 50: Official and working languages’ in O Triffterer and K Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn CH Beck Hart Nomos 2016) 1323–31.

  • JH Dingfelder Stone, Court Interpreters and Fair Trials (Palgrave Macmillan Cham Switzerland 2018).

  • L Swigart, ‘Unseen and Unsung: Language Services at the International Criminal Court and Their Impact on Institutional Legitimacy’ in F Baetens (ed), Legitimacy of Unseen Actors in International Adjudication (CUP 2019) 279.

  • GM Lentner, ‘Law, Language, and Power: English and the Production of Ignorance in International Law’ (2019) 8 International Journal of Language and Law 50–66.

  • B Schmitt, ‘ICC Judge Schmitt Counsels Resilience to Preserve International Justice’ (2019) <https://www.justsecurity.org/62577/icc-judge-schmitt-counsels-resilience-preserve-international-justice/> (accessed 7 August 2020).

Further Bibliography

  • S Šarcevic, ‘Legal Translation and Translation Theory: A Receiver-oriented Approach’ in Legal translation, theory/ies, and practice (International colloquium organized by the School of Translation and Interpretation of the University of Geneva and the Swiss Translators, Terminologists and Interpreters Association at the University of Geneva, 17–19 February 2000).

  • C Focarelli, International Law as Social Construct: The Struggle for Global Justice (OUP Oxford 2012).

  • G Bitti, ‘Article 64: Functions and powers of the Trial Chamber’ in O Triffterer and K Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn CH Beck Hart Nomos 2016) 1588–620.

  • WA Schabas and Y McDermott, ‘Article 67: Rights of the Accused’ in O Triffterer and K Ambos (eds), The Rome Statute of the International Criminal Court: A Commentary (3rd edn CH Beck Hart Nomos 2016) 1650–80.

Cited Documents

Cited Cases