Legal Assumptions and Unintended Meanings Before International and Hybrid Criminal Courts: Effects on Trial Proceedings and Defense Rights

Abstract

This chapter considers the accuracy of interpretations and to some extent, translations in international and hybrid criminal courts settings and looks at the effects of both linguistic and paralinguistic (non-verbal) misinterpretations on the effectiveness of the international criminal process, and in particular, the effects these can have on the quality of trials, procedural fairness and ultimately defense rights. Specifically, the rights to seek and expect from international criminal courts and tribunals competent and effective language services, as well as the corresponding right to review translated transcripts and relevant documents, are considered here. As this chapter tries to demonstrate, the protection and further development of these specific rights are essential to the requirements of procedural fairness alongside the rights to equality before the law, equality of arms and the right to a fair trial. Although statutes and rules of international courts and tribunals assert that equal treatment before the law, as recognized in international human rights law, requires that there be no significant disparity in trial and punishment regimes in individual cases, there remain considerable outcome problems in these complex, multilingual and multicultural settings. Right to equality before the law and the right to a fair trial are examined here with a particular reference to ICCPR Article 14 and the fact that some rights under this Article, such as the right to a fair trial by an independent and impartial tribunal for instance (para. III), are recognized as absolute rights by the Human Rights Committee?s General Comment No. 32 (2007), whereas other, corollary rights (Arts. 6 and 7), are deemed derogable (para.I). Case law reveals in fact that equal and equitable protection of fundamental procedural pre-trial and trial rights remains inconsistent and that the determination of the nature of ICCPR provisions is contradictory. Given the complexity of most international criminal trials, some practical interpretation and translations problems may be readily recognized and anticipated. Nevertheless, the responsibility to fully explore reasons and conditions that lead to potentially procedurally and ethically unjust trial outcomes rests on the judiciary. The responsibility to provide effective remedies in individual cases rests on them too. Importantly, these courts and tribunals are based and legitimized on the basis of their legal foundations and principles deriving from the rule of law, such as independence, transparency and accountability. In turn, the rule of law increasingly requires that international justice is administered by applying norms that promote and protect elevated, and not just minimum, human rights standards and fundamental values of equality, fairness and justice . By analyzing statutes and rules of procedure and evidence of international courts, their proceedings as well as studying court transcripts and simultaneous translations in different international criminal law jurisdictions (mainly ICTY, ICTR and the ICC), the chapter examines whether the review of court transcripts in the second (translated) language could amount to a procedural right in international criminal law.