Language and the Right to Fair Hearing in International Criminal Trials [recurso electrónico] $c

Language and the Right to Fair Hearing in International Criminal Trials explores the influence of the dynamic factor of language on trial fairness in international criminal proceedings. By means of empirical research and jurisprudential analysis, this book explores the implications that conducting a trial in more than one language can have for the right to fair trial. It reveals that the language debate is as old as international criminal justice, but due to misrepresentation of the status of language fair trial rights in international law, the debate has not yielded concrete reforms.Language is the core foundation for justice. It is the means through which the rights of the accused are secured and exercised. Linguistic complexities such as misunderstandings, translation errors and cultural distance among participants in international criminal trials affect courtroom communication, the presentation and the perception of the evidence, hence jeopardizing the foundations of a fair trial.The author concludes that language fair trial rights are priority rights situated in the minimum guarantees of fair criminal trial; the obligation of the court to ensure fair trial or accord the accused person a fair hearing also includes the duty to ensure they can understand and be understood__.__ Foreword 8 International Criminal Courts Resemble the Tower of Babel 8 Statutes/Legislation/Instruments 12 Acknowledgments 16 Abbreviations 18 Contents 20 Chapter 1: Introduction 23 Bibliography 26 Chapter 2: The Language Debate in International Criminal Justice 27 2.1 Introduction 27 2.2 Language Diversity in International Criminal Trials 29 2.2.1 International Military Tribunal (IMT) 29 2.2.2 International Military Tribunal for the Far East (IMTFE) 30 2.3 The Tribunals of the Twentieth Century Onwards 32 2.3.1 International Criminal Tribunal for Former Yugoslavia (ICTY) 34 2.3.2 International Criminal Tribunal for Rwanda (ICTR) 35 2.3.3 International Criminal Court (ICC) 38 2.4 Hybrid Tribunals 40 2.5 Structural Provisions for Linguistic Diversity in International Criminal Law Practice 43 2.6 Problematic Multilingual Court Communication Patterns 45 2.7 Selected Themes of the Language Debate in International Criminal Justice 47 2.7.1 Multilingualism vis-à-vis Multiculturalism 47 2.7.1.1 Paralinguistics 52 2.7.2 Translation as an Aid to the Trial Process 53 2.7.2.1 History of Translation in International Criminal Proceedings 53 2.7.2.2 Significance of Translation in the Trial Process 54 2.7.2.3 Disadvantages of Translation in the Trial Process 55 2.7.3 The Rights Perspective of the Language Debate in International Criminal Justice 57 2.7.3.1 Language Fair Trial Rights 58 2.7.3.2 Restricting Linguistic Rights as a Fair Trial Consideration 60 2.8 The Status of the Language Debate in the International Criminal Law Discourse 62 2.9 Conclusion 63 Bibliography 64 References 64 Cases Cited 64 Documents 65 Chapter 3: Rights or Privileges: Evaluating the Framework of Protection of Fair Trial Rights in International Criminal Law Practice 67 3.1 Introduction 67 3.2 Nature and Scope of Human Rights Obligations of International Criminal Courts 69 3.2.1 Duty to Respect Fair Trial Rights 71 3.2.1.1 Standard of Respect for Fair Trial Rights 75 3.3 Judicial Perspectives on Fair Trial Rights 77 3.3.1 Significance of Rules of Procedure and Evidence 77 3.3.2 Duty of Accused Persons to Take Reasonable Steps to Realise Fair Trial Rights 78 3.3.3 Procedural Rights vis-à-vis Substantive Rights 79 3.3.4 Overarching Right to Fair and Expeditious Trial 81 3.4 Judicial Remedy for Infringement of Fair Trial Rights 82 3.4.1 Nature of Remedies 83 3.4.1.1 Right of the Accused to Compensation Under the ICC Statute 84 3.4.1.2 Relinquishing Jurisdiction on the Basis of Human Rights Violations 86 3.5 Conclusion 88 Bibliography 89 Cases Cited 89 Documents 90 Chapter 4: Language Rights in the Minimum Guarantees of Fair Criminal Trial 92 4.1 Introduction 92 4.2 Evolution of the Fair Trial Provision 94 4.3 Situating Language Rights in the Minimum Guarantees of Fair Criminal Trial 97 4.3.1 Information on Charges 97 4.3.2 Adequate Time and Facilities to Prepare a Defence 103 4.3.3 Right to be Tried Without Undue Delay 106 4.3.4 Right to Defence 108 4.3.5 Examination and Cross-Examination of Witnesses 109 4.3.6 Interpretative Assistance 111 4.3.7 Right Against Self-Incrimination 113 4.4 Language Fair Trial Rights vis-à-vis the Right to be Heard 114 4.5 Conclusion 116 Bibliography 118 Cases Cited 118 Books and Documents 119 Chapter 5: Understanding the Role of Translation in Trial Fairness 121 5.1 Introduction 121 5.2 Meaning and Ambiguity of Translation and Interpretation in Legal Proceedings 123 5.3 Translation in International Criminal Proceedings 126 5.3.1 Translation During Investigation of International Crimes 126 5.3.2 Translation in the Trial-Phase 127 5.3.3 Significance of Translation to International Criminal Tribunals (ICTs) 128 5.3.4 Role of the Translator 130 5.3.5 Procedural Technicalities of Translation at ICTs 130 5.3.6 Substantive Technicalities of Translation 131 5.3.6.1 Interpretation Phase 132 5.3.6.2 Production/Reproduction Phase 133 5.3.7 Peculiarities and Challenges of Translating Legal Text 134 5.3.7.1 Vague Scope of the Role of a Translator 134 Translator as Editor 135 Translator as Researcher 135 Translator in Developing Vocabulary 136 5.3.7.2 Highly Specialised and Complex Subject Matter 136 5.3.7.3 Merger of Legal Systems and Legal Cultures 138 5.3.7.4 Nexus Between Context and Meaning of Legal Text 140 5.3.7.5 Significance of Social Culture to Effective Translation 140 5.3.7.6 Limited Standardisation and Limited Legalisation of Languages 142 5.3.7.7 Time Limits and Hurried Translations 144 5.3.8 Shortfalls in Translation 146 5.3.8.1 Alterations 146 5.3.8.2 Lack of Precision 147 5.3.8.3 Errors in Translation and Interpretation 148 Correction of Errors in Translation 150 5.3.9 Legal Status of a Translation 150 5.4 Process of Interpreting (Oral Transmission) 151 5.4.1 Role of a Courtroom Interpreter 153 5.4.2 Challenges to Courtroom Interpreting 154 5.4.2.1 Highly Pressurised Working Circumstances: `The Interpretation Furnace ́ 154 5.4.2.2 Speed of Speech 156 5.4.2.3 Maintaining Impartiality 157 5.5 Conclusion 158 Bibliography 159 References 159 Cases Cited 159 Documents 160 Chapter 6: Conclusion and Recommendations 162 Bibliography 165 Language and the Right to Fair Hearing in International Criminal Trials explores the influence of the dynamic factor of language on trial fairness in international criminal proceedings. By means of empirical research and jurisprudential analysis, this book explores the implications that conducting a trial in more than one language can have for the right to fair trial. It reveals that the language debate is as old as international criminal justice, but due to misrepresentation of the status of language fair trial rights in international law, the debate has not yielded concrete reforms. Language is the core foundation for justice. It is the means through which the rights of the accused are secured and exercised. Linguistic complexities such as misunderstandings, translation errors and cultural distance among participants in international criminal trials affect courtroom communication, the presentation and the perception of the evidence, hence jeopardizing the foundations of a fair trial. The author concludes that language fair trial rights are priority rights situated in the minimum guarantees of fair criminal trial; the obligation of the court to ensure fair trial or accord the accused person a fair hearing also includes the duty to ensure they can understand and be understood . "Explores the influence of the dynamic factor of language on trial fairness in international criminal proceedings. By means of empirical research and jurisprudential analysis, this book explores the implications that conducting a trial in more than one language can have for the right to fair trial. It reveals that the language debate is as old as international criminal justice, but due to misrepresentation of the status of language fair trial rights in international law, the debate has not yielded concrete reforms. Language is the core foundation for justice. It is the means through which the rights of the accused are secured and exercised. Linguistic complexities such as misunderstandings, translation errors and cultural distance among participants in international criminal trials affect courtroom communication, the presentation and the perception of the evidence, hence jeopardizing the foundations of a fair trial"--Page [4] of cover. "Explores the influence of the dynamic factor of language on trial fairness in international criminal proceedings. By means of empirical research and jurisprudential analysis, this book explores the implications that conducting a trial in more than one language can have for the right to fair trial. It reveals that the language debate is as old as international criminal justice, but due to misrepresentation of the status of language fair trial rights in international law, the debate has not yielded concrete reforms. Language is the core foundation for justice. It is the means through which the rights of the accused are secured and exercised. Linguistic complexities such as misunderstandings, translation errors and cultural distance among participants in international criminal trials affect courtroom communication, the presentation and the perception of the evidence, hence jeopardizing the foundations of a fair trial"--Back cover Front Matter....Pages i-xxi Introduction....Pages 1-4 The Language Debate in International Criminal Justice....Pages 5-44 Rights or Privileges : Evaluating the Framework of Protection of Fair Trial Rights in International Criminal Law Practice....Pages 45-69 Language Rights in the Minimum Guarantees of Fair Criminal Trial....Pages 71-99 Understanding the Role of Translation in Trial Fairness....Pages 101-141 Conclusion and Recommendations....Pages 143-146