Lost in translation: international criminal tribunals and the legal implications of interpreted testimony.

AuthorKarton, Joshua

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)

  1. 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...

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