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 