Justice for all: protecting the translation rights of defendants in international war crime tribunals.

• Author: Giridhar, Kavitha R.
• Position: Divided Loyalties: Professional Standards and Military Duty

International war crimes tribunals have been established to restore justice in those states that have suffered from genocide, crimes against humanity, and war crimes. In this quest for justice, it is imperative that the rights of the accused are protected. International human rights instruments and the statutes of the war crime tribunals grant the accused a right to understand the charges against him or her and the free assistance of an interpreter. International judicial decisions have determined this right includes the right to translation. However, in implementing this included right the tribunals have held that the accused do not possess an absolute right to the translation of documents. This Note examines the importance of translation with regard to the legitimacy of the international criminal system, the accused's right to procedural due process, and the equality of arms principle. It proposes that the needs of both the defense and the tribunals can be met by providing each defense team with its own interpreters.

1. INTRODUCTION II. THE RIGHT TO TRANSLATION IN INTERNATIONAL LAW A. Human Rights Instruments B. Statutes of the International Criminal and Human Rights Tribunals C. International Jurisprudence and the Right to Interpretation III. INTERNATIONAL CRIMINAL JURISPRUDENCE AND THE NARROW RIGHT TO TRANSLATION A. The Indictment B. Legal Filings to the Court C. Discovery 1. Incriminatory materials 2. Exculpatory materials D. Evidence IV. BROADENING THE RIGHT TO TRANSLATION A. Legitimacy of the International Criminal System B. Upholding the Due Process Rights of the Accused C. The Principle of Equality of Arms V. SOLUTION: PROVISION OF TRANSLATORS A. Costs to the Tribunal B. Benefits to the Defendant VI. CONCLUSION I. INTRODUCTION

   "[W]e win justice quickest by rendering justice to the other party." (1)

   --Mohandas Gandhi

   The international community has long upheld the principle that all individuals--even those accused of the greatest crimes--have the right to due process in international criminal proceedings. (2) Within these due process rights is the right to participate in one's trial and the right to have adequate time and facilities to prepare a defense. (3) To effectuate these rights for those defendants who do not understand the language of the court, the international community has granted the right to the free assistance of an interpreter. (4) The right to interpretation has been enforced in the international criminal tribunals through both their statutes and decisions. However, the emerging jurisprudence regarding the accused's right to translation is far more diverse and tenuous. (5)

   This Note contends that translation rights are as important as interpretation rights and should be protected as such. Part II begins by examining the development of the right to interpretation and the accompanying right to translation in international law. Part III then proceeds to a review of judicial decisions addressing the narrow right to translation. It reveals that a defendant has a limited right to translation. Part IV discusses three factors that compel broadening the right to translation: (1) the legitimacy of the international criminal system; (2) the accused's due process rights; and (3) the equality of arms principle. Part V concludes that the international war crime tribunals should provide each defense team with its own translator(s) according to need.

2. THE RIGHT TO TRANSLATION IN INTERNATIONAL LAW

   The right of an accused war crime defendant to the free assistance of an interpreter derives from three sources: (1) human rights instruments; (2) the statutes of the international criminal tribunals and human rights courts; and (3) judicial decisions. The right to translation, while not stated explicitly in international treaties and statutes, has arisen from the international courts' interpretation of an accused's right to interpretation.

   1. Human Rights Instruments

      The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) provide the minimum guarantees of due process in international law. (6) The UDHR sets forth general principles of human rights, including the right to a fair trial. (7) It grants that "everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him." (8) The ICCPR also provides that every person before a tribunal is entitled to a fair, public, and independent trial. (9) In order to uphold this right for those defendants who do not speak the language of the tribunal, the ICCPR grants every accused the right to understand the charges against him or her and the proceedings of the court. (10) This right includes the right to the free assistance of an interpreter. (11)

   2. Statutes of the International Criminal and Human Rights Tribunals

      The International Military Tribunal (IMT) in Nuremberg was the first international tribunal to prosecute war criminals. The IMT Charter reflected a concern for the procedural protections of the accused. (12) The rights originally proposed in the American draft of the Charter were later expanded to include translation and interpretation. (13) Article 16 of the IMT Charter provided for an interpreter during trial and also included the defendant's right to a copy of the indictment and supplementary materials in a language he or she understood. (14)

      The Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention of Human Rights, embraces the general principles of the UDHR and ICCPR. The Convention entered into force on September 3, 1953 and is enforced by the European Court of Human Rights (ECHR). It provides that everyone charged with a criminal offense has the minimum right to be "informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him" and "to have the free assistance of an interpreter if he cannot understand or speak the language used in court." (15)

      The current international war crime tribunals and the International Criminal Court (ICC) have followed the IMT and ECHR. (16) The language in the tribunals' statutes mirror the language found in the ICCPR and the European Convention of Human Rights. Each provide the accused the right to be informed of the charges against him or her in a language which he or she understands, to have adequate time and facilities for the preparation of his or her defense, and to have the free assistance of an interpreter if he or she cannot understand or speak the language used in the international tribunal. (17) In addition, the ICC grants the accused the right to translation of documents that are necessary to meet the requirements of fairness, if the documents are not in a language the defendant fully understands or speaks. (18)

   3. International Jurisprudence and the Right to Interpretation

      With the exception of the ICC, the right to translation is not explicitly provided for in any current international tribunal statute. However, international courts have held that the right to translation is implicit within the right to interpretation. The ECHR found that the right to the free assistance of an interpreter includes the right to the translation of those documents necessary to ensure a fair trial. (19) In particular, a defendant has the right to translation of those documents that enable him or her to understand the case and adequately prepare a defense. (20)

      The international criminal tribunals have followed the precedent of the ECHR and determined that the right to free assistance of an interpreter includes the translation of documents. The tribunals have further upheld the ECHR finding that a defendant is not entitled to translation of all documents, but rather the defendant has a qualified right to translation. (21) Without such a limitation, the tribunals fear a defendant's right to an expeditious trial could be harmed. (22) The magnitude of the crimes before the international war crime tribunals has generated an enormous amount of documents. The mandatory translation of thousands of documents would likely lead to long delays. (23) Moreover, requests for translation of all documents by one defendant could adversely impact other defendants' right to an expeditious trial by creating a backlog. (24) The tribunals are also concerned with efficient allocation of limited resources, and do not want to translate documents unless necessary. (25) Therefore, the tribunals have held that an accused is not entitled to translation of all documents and have instead strived to find a balance between the right of a defendant to participate in his or her trial with these other rights and goals. (26)

3. INTERNATIONAL CRIMINAL JURISPRUDENCE AND THE NARROW RIGHT TO TRANSLATION

   The foregoing analysis reveals that while international criminal tribunals recognize a right to translation, they have limited that right to certain documents. These limitations differ amongst the tribunals. This section will review the tribunals' decisions concerning the translation of the indictment, legal filings, discovery documents, and evidence.

   1. The Indictment

      The indictment formally puts a defendant on written notice of the factual and legal bases for the charges against him or her. (27) Due to the importance of this document, the international criminal tribunals have consistently recognized the right of the accused to have the indictment and its supplementary materials translated into a language he or she understands. This is demonstrated in both the tribunals' procedural rules and decisions.

      The Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Special Tribunal for Lebanon (STL) obligate the Prosecutor to disclose to the Defense, in a language that the accused understands, the...