Chaucer's Troilus and Criseyde IV. 588

Language and the Right to Fair Hearing in International Criminal Trials

“…Gaining a clear understanding of paralinguistic forms of communication is made difficult by cultural differences and the interposition of an interpreter. 180 Contemporary modes of testifying at ICTs such as the use of video links, and distortion of voices and faces in protecting witness identities further minimise the opportunity of deciphering paralinguistics accurately. Some scholars have taken the argument further by contending that for nearly all the participants in an international criminal proceeding, the law, process, and physical context of the trial are alien; even if all the words spoken in a trial are correctly translated, the cultural gap between court officials and counsel on one side, and participants on the other, makes it impossible for the participants to participate fully in the trial.…”

“…Some scholars have taken the argument further by contending that for nearly all the participants in an international criminal proceeding, the law, process, and physical context of the trial are alien; even if all the words spoken in a trial are correctly translated, the cultural gap between court officials and counsel on one side, and participants on the other, makes it impossible for the participants to participate fully in the trial. 181 This assertion is true to the extent that international trials are a learning process for all participants; as international personnel seek to understand the cultural context of their operations, the victims and witnesses are often overwhelmed by the clout of the proceedings that some are intimidated and others excited into exaggerating for effect, hence misleading the court. 178 Karton (2008), p. 24.…”

“…240 The fact that not all documents on a defendant's file are in a language they understand is not a violation of their fair trial rights. 241 Providing a defendant with an interpreter may be an adequate substitute for provision of certain documents in a language the defendant understands. 242 However, in any event, the following materials must be translated into the language of the accused (a) a copy of the indictment; (b) a copy of the supporting material which accompanied the indictment against the accused and all prior statements obtained by the prosecutor from the accused, irrespective of whether these items will be offered at trial; (c) statements of all witnesses (either in hard copy or in audio format) that the prosecutor intends to call to testify at trial along with all written statements taken as admission of written statements and transcripts in lieu of oral testimony, and statements of additional prosecution witnesses when a decision is made to call those witnesses; (d) discovery material which came under the prosecution's custody or control; (e) written decisions and orders rendered by the chambers.…”

“…242 However, in any event, the following materials must be translated into the language of the accused (a) a copy of the indictment; (b) a copy of the supporting material which accompanied the indictment against the accused and all prior statements obtained by the prosecutor from the accused, irrespective of whether these items will be offered at trial; (c) statements of all witnesses (either in hard copy or in audio format) that the prosecutor intends to call to testify at trial along with all written statements taken as admission of written statements and transcripts in lieu of oral testimony, and statements of additional prosecution witnesses when a decision is made to call those witnesses; (d) discovery material which came under the prosecution's custody or control; (e) written decisions and orders rendered by the chambers. 243 The right to translation is also constrained by the overarching goal of expediting trial. In Siméon Nchamihigo, the appeals chamber denied a request for a further extension of time for the appellant to be provided with a translation of the prosecution's brief.…”

“…For interpreters, it might mean inadequate concentration, inability to catch the flow and direction of the case, or forgetting some words. 180 However, there are errors that participants help create. This may be due to lack of clarity in speech and needless complication of questions.…”