Mr. Dominic Ongwen finally appeared at the ICC in trial Chamber II clad in a dark blue suit, white shirt and a checkered tie to set in motion what will be a long journey to justice for his victims and he himself as a person. Mr. Ongwen faces a total of 7 counts of crimes against humanity and war crimes.
Judge Ekaterina Trendafilova asked Mr. Ongwen to introduce himself and his reply through an interpreter was, “I would like to thank God for creating heaven and earth together with everybody on this earth.” You can watch the full Dominic Ongwen initial appearance hearing at the ICC held on January 26th 2015 here.
This trial further presents a rare opportunity to among others revive the debate on the atrocities by Joseph Kony’s Lords Resistance Army (LRA) and the role of the Government of Uganda and other non-state actors in the war in Northern Uganda.
This is not a first. If there is any challenge in common with all international courts, it is the challenge of translation and interpretation of testimonies and other critical pieces of evidence.
Refer to the records of the Nuremberg and Tokyo Tribunals in the 1940s or the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 or the Special Tribunal for Lebanon (STL) at the Hague.
It is 2015 and the ICC seams not to have a clear answer to this serious challenge that presents far-reaching consequences on procedural rights and due process in general despite the introduction of the E-Court electronic management system in 2006 among other initiatives.
Generally, translators and interpreters are often looked at as an ordinary bridge of communication or a neutral mouthpiece. Far from that. At the ICTY’s trial of Dusko Tadic, the court’s prosecutor observed, “(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”.
In the Nuremberg trial, the Chief Interpreter Peter Uiberall conceded that interpreters were routinely translating the German word “ja” as “yes”. He opined that whereas “ja” may mean “yes”, a section of German speakers used it in the way English speakers use “well” or “um” as a place-filler to mean unconditional admission. If misinterpreted, these words can mean something totally different and significantly sway the testimony on court record away from the testimony actually adduced.
On January 20th, 2015, while addressing the ICC on request of his lead Counsel Karim Khan, Kenya’s Deputy President William Ruto is on record to have strongly protested against the “poor translation” at the court from English to Swahili. In a blunt attack on the court’s Congolese translators, he lambasted the gross misleading errors in Swahili words.
One would ask, why does the ICC engage services of a Swahili translator from Congo, a French-speaking nation? Why not engage one from Kenya or Tanzania where the general command of the language is proficient?
The ICC also continues to acknowledge English, French, Arabic, Spanish, Chinese and Russian as the only official languages of the court. The court’s working languages are English and French. One wonders why Swahili or any other major African language is yet to make it to that list despite the block representing the largest regional grouping of countries within the ICC’s Assembly of State Parties. ICC needs to make more efforts to address this.
The value of correct interpretation is critical not only in the court but also during the process of collecting evidence and tracing victims and witnesses in the field.
Incidences of distortions stemming from intrinsic indeterminacy of translated language can be addressed but poor translation, distorting utterances, and bowdlerizing, or editorializing statements must not go unchallenged.
The legal ramifications of distorted interpretation comprise a violation of the procedural rights of the defendants and prejudice attendant fundamental due process rights as cited earlier but it also raises doubts on judicial findings of fact.
Further, when a defendant fails to communicate directly with his/her counsel or a top member of the legal team, he or she often fail to nurture full confidence in the process which effectively robs off the defendant the right to effective counsel.
It is of significance importance that the witnesses or defendants and counsel speak directly to each other as much as possible to ignore the interpreter intermediary. Once the defendant fails to be fully involved in his trial due to language barrier, failure to accurately understand testimonies and other proceedings in court, it is no different than having tried him or her in absentia.
At the ICTY Tribunal, it was noted in the Zdravko Mucic case, “The Attorneys who speak both English and ‘Bosnian’ (read local language of defendant/victims – emphasis mine) have noticed many errors in the translation which change the meaning…. The answer given on several occasions changed not only the names of people and places but also the very substance of what the witness was saying”.
The Judges at the court are no neutral umpires. They are arbiters of the result with inquisitorial powers. As such, the onus for avoiding distorted translation should fall squarely on the trial Judges. To leave it to the parties to discover interpretation errors in the record is to make adversarial parties the guardians of critical due process. This can only end one way.
The question of alterations of testimonies is not a technical one to be addressed purely by linguists and other experts in translation. It has serious legal consequences and the court must take all steps to ensure such distortions are avoided.