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Effective Communication in Multilingual Judicial Proceedings

June 2022

In book: Victim Advocacy before the International Criminal Court (pp.231-262)

Authors:

International Criminal Court

Since the Nuremberg trials, international criminal courts and tribunals have been multilingual environments with simultaneous interpreting of judicial proceedings. Counsel participating in international criminal proceedings will therefore, perhaps for the first time in their careers, find that their submissions are simultaneously interpreted into one or more languages. While the Presiding Judge is ultimately responsible for conducting a fair trial, all courtroom parties and participants including counsel, and interpreters, have a role to play in enabling a fair trial through their contributions to the requisite quality and reliability of courtroom communication and the record thereof. It is the aim of this chapter to help counsel make their submissions in interpreted international criminal proceedings as effectively as possible, thereby contributing to successful multilingual communication in such judicial settings. Rather than limiting itself to guidelines, this paper gives counsel an insight into the processes involved in simultaneous interpretation, before setting out examples of best practice and recommendations for counsel appearing before international criminal courts and tribunals.

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ElizabethKing

RianneLetschert

SamGarkawe

ErinPobjieEditors

Victim Advocacy

before

theInternational

Criminal Court

Victim Advocacy before the International Criminal

Court

Elizabeth King •Rianne Letschert •

Sam Garkawe •Erin Pobjie

Editors

Victim Advocacy before

the International Criminal

Court

Editors

Elizabeth King

Member, List of Counsel

International Criminal Court

The Hague, The Netherlands

Victorian Bar

Greens List Barristers

Melbourne, VIC, Australia

Rianne Letschert

President of Maastricht University

Maastricht, The Netherlands

Sam Garkawe

School of Law and Justice

Southern Cross University

East Lismore, New South Wales, Australia

Erin Pobjie

International Law

University of Essex

Colchester, UK

ISBN 978-3-030-56731-6 ISBN 978-3-030-56733-0 (eBook)

https://doi.org/10.1007/978-3-030-56733-0

©Springer Nature Switzerland AG 2022

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...things standing thus unknown, shall live behind me!

If thou didst ever hold me in thy heart

Absent thee from felicity a while,

And in this harsh world draw thy breath in pain

To tell my story.—Hamlet (Act 5, Scene 2) by William Shakespeare

...si les choses restent ainsi inconnues, vivra après moi!

Si jamais tu m’as porté dans ton cœur,

absente-toi quelque temps encore de la félicité céleste,

et exhale ton soufﬂe pénible dans ce monde rigoureux,

pour raconter mon histoire.—Hamlet (Scène 20) de William Shakespeare. Traduction de

Victor Hugo

My voice is heard in the court because my story will be read,

and will be known, and I will be represented.

Reﬂections of a Ugandan victim in an interview by Berkeley Law (CA, USA), discussing victim

participation at the International Criminal Court

Ma voix est entendue dans la cour parce que mon histoire sera lue et sera connue, et je serai

représentée

Réﬂexions d’une victime ougandaise dans une interview de Berkeley Law (CA, USA), discutant

de la participation des victimes à la Cour pénale internationale

Hugo, François-Victor, (1865) Le Deux Hamlet (2e éd). Paris: France Pagnerre, p. 369.

The Victims’Court? A Study of 622 Victim Participants at the International Criminal Court by

Cody, S., Stover, E., Balthazard, M., Koenig, A., & Human Rights Center, University of California,

Berkeley, School of Law. (2015:33). https://www.law.berkeley.edu/wp-content/uploads/2015/04/

VP_report_2015_ﬁnal_full2.pdf. Accessed 10 January 2020.

vii

Contents

Part I Introduction of Legal Doctrine

The Modalities of Victim Participation .......................... 3

Solange Mouthaan

A Brief Overview of the Crimes Prosecuted by the ICC, Defences

to These Crimes, and the Scope of Liability for These Crimes ........ 25

Sam Garkawe

Part II Essential Advocacy Techniques; Advocacy Skills for the

Victim Advocate

Understanding Your Role and Responsibilities as Counsel for the

Victim ................................................... 47

George Hampel

Case Preparation and Analysis ................................ 51

George Hampel

Developing Legal Argument .................................. 61

George Hampel

Written Advocacy .......................................... 69

George Hampel

Effective Court Room Communication .......................... 79

George Hampel

Making an Opening Address ................................. 95

George Hampel

Leading Evidence in Chief ................................... 103

George Hampel

Conducting Cross-Examination ............................... 125

George Hampel

Dealing with Expert Evidence ................................. 141

George Hampel

Part III Interdisciplinary Considerations

Representing Victims Who Have Been Subject to Violent Sexual

or Reproductive Crimes ..................................... 159

Solange Mouthaan

Representing Victims Who Are Children ........................ 181

Francesca Capone

Post-conﬂict Mental Health and the Role of Transitional Justice ...... 215

Alvin Kuowei Tay and Zachary Steel

Effective Communication in Multilingual Judicial Proceedings ....... 231

Andrew Constable

Interview Dr Melinda McPherson: Considerations of Gender

in Representing Victims Before the International Criminal Court ..... 263

Melinda McPherson

Part IV Resources

Interview Jens Dieckmann: Member of the List of Counsel Who Has

Appeared Before the International Criminal Court as a Victim

Advocate ................................................ 275

Jens Dieckmann

Entretien avec Jean-Louis Gilissen: les déﬁs de la représentation des

victimes de différentes cultures

Interview with Jean-Louis Gilissen: The Challenges of Representing

Victims of Different Cultures ................................. 287

Jean-Louis Gilissen

Interview Paolina Massidda: Principal Counsel of the Ofﬁce

of Public Counsel for the Victims (OPCV) ....................... 293

Paolina Massidda

Interview Fiona McKay: Former Chief of the Victims

Participation and Reparations Section (VPRS) .................... 305

Fiona McKay

Interview Milê Glamcevski: Vicarious Trauma and Self Care

for the Victim Advocate ..................................... 313

Milê Glamcevski

x Contents

Ensuring That Your Client Receives Adequate Non-Legal

Professional Support Before, During and After the Court Process ..... 321

Ronda Cress

Appendix A: Summary of Advocacy Fundamentals ................ 339

Appendix B: Advocacy Case Studies and Exercises ................ 343

Contents xi

Effective Communication in Multilingual

Judicial Proceedings

Andrew Constable

1 Introduction: Legal Basis of ICC Language Regime

and Linguistic Responsibilities

The territorial jurisdiction of the International Criminal Court (ICC) has resulted in

investigations in a large number of geographical areas in which the languages

spoken are as numerous as they are diverse, giving the ICC a language regime

unlike any other international organisation. The linguistic rights of the accused are

set out in Article 67 of the Rome Statute, namely “(a) To be informed promptly and

in detail of the nature, cause and content of the charge, in a language which the

accused fully understands and speaks”, and “(f) To have, free of any cost, the

assistance of a competent interpreter and such translations as are necessary to meet

the requirements of fairness, if any of the proceedings of or documents presented to

the Court are not in a language which the accused fully understands and speaks”.

In addition, several other provisions of the Rules of Procedure and Evidence have

relevance to linguistic services at the Court, including Rule 76(1), which provides

that the “statements of prosecution witnesses shall be made available in original and

in a language which the accused fully understands and speaks”. Finally, it should be

noted that under Article 64(2) of the Rome Statute it is the Trial Chamber that is

responsible for ensuring that a trial is fair, expeditious and “conducted with full

respect for the rights of the accused”.

Trials at the ICC are held in the working languages of the Court (English and

French) and in the so-called situation languages, i.e. the language(s) of the accused

The views expressed herein are those of the author alone and cannot be taken as reﬂecting the views

of the International Criminal Court.

A. Constable (*)

The Hague, The Netherlands

e-mail: a.constable@aiic.net

©Springer Nature Switzerland AG 2022

E. King et al. (eds.), Victim Advocacy before the International Criminal Court,

https://doi.org/10.1007/978-3-030-56733-0_15

231

(there may be more than one accused in a particular trial) and the languages spoken

by the witnesses called to testify at trial, with hearings to date held in up to four

languages.

The Language Services Section (LSS) of the Registry is tasked with the provision

of Court translation and interpreting services to meet the Court’s commitments under

the Rome Statute. It provides simultaneous interpreting in the working languages of

the Court, the ofﬁcial languages of the Court, and in the situation languages of the

Court, which have included languages of lesser diffusion (LLDs) such as Acholi,

Congolese Swahili, Lingala, Sango and Zaghawa. Where no simultaneous inter-

preters can be found (which is frequently the case for LLDs) with the speciﬁc

language combination required to interpret for the accused in a given case, LSS

recruits and trains linguists with the requisite combination in simultaneous

interpreting, a process that takes a minimum of six months (Constable, 1996,

p. 73). However, for the interpretation of speciﬁc witnesses with languages for

which no simultaneous interpreters can be found, LSS provides training in consec-

utive interpreting in a much shorter programme, with a mixture of consecutive and

simultaneous interpreting being used at trial.

Alongside the interpreter training, LSS undertakes considerable terminological

work with linguists and the trainee interpreters in the situation languages, for

example in the area of legal terminology, where many of the concepts of common

law, civil law and international criminal law may not exist in certain situation

languages of lesser diffusion.

2 Simultaneous Interpretation in International Criminal

Proceedings

Quality in interpreting cannot be regarded as the sole responsibility of interpreters. All

parties need to assume responsibility (Hale et al., 2009,p.3).

The Members of the Court do not necessarily follow the oral submissions in the language in

which they are made but often listen to the simultaneous interpretation. This imposes certain

constraints to which Counsel should, in their own interests, be attentive in order to ensure

that what they say is perfectly understood by the Members of the Court. Counsel must

therefore regard the interpreters as essential partners in the presentation of their argument

(CJEC, 2009).

Simultaneous interpretation has been the modus operandi in international crim-

inal tribunals since it was ﬁrst implemented in response to the linguistic challenges

of the Nuremberg tribunal, where trials had to be expeditious yet held in its four

languages (Gaiba, 1998). This rationale is still valid today, with simultaneous

interpretation having been the mode used in the hearings of the UN international

criminal tribunals (ICTY, ICTR), the so-called hybrid or internationalised criminal

tribunals (STL, ECCC, SCLC), as well as the ICC.

232 A. Constable

The quality of such interpretation, and thus the accuracy and reliability of any

transcription thereof, is of fundamental importance in bilingual or multilingual trials.

The requirement pertains to the primacy of the principle of orality in international

criminal law (Klamberg, 2013, p. 417), namely that witness testimony should be

given live, viva voce and under oath. Thus, the interpretation of oral proceedings and

the transcripts thereof form an integral part of the court record. According to Trial

Chamber I of the International Criminal Court (ICC) in the Lubanga case (2009), “[i]

t is well arguable that the right to a fair trial includes access to a reliable record of the

proceedings”.

The following subsections are intended to give counsel an insight into the

processes involved in simultaneous interpretation, explaining its inherent limitations

compared to translation as well as associated “problem triggers”(Gile, 1995). With a

view to making recommendations for counsel working with interpreters, focus is

ﬁrst placed on Gile’s Effort Model and its notions of Short-term Memory Effort and

Listening and Analysis Effort in simultaneous interpreting. This paper will then set

out associated problem triggers before giving examples of best practice and

recommendations.

2.1 Translation, Interpretation and Transcription

The fact that the court interpreter’s output is transcribed and thereby converted into

written form, taking on the allure of translation, gives rise to end-user expectations of

accuracy and reliability on a par with those for written translation. Despite the very

different production methods as well as quantitative and qualitative output of

translation and interpretation, the transcription of simultaneous interpretation con-

stitutes evidence in criminal proceedings. The levels of scrutiny that the interpreta-

tion is subject to in international criminal proceedings is therefore unlike many

conference interpreting environments.

Accuracy is central to the work of all interpreters. In a criminal trial it is essential. The

interpreters’words become evidence, as they are recorded in transcripts that become the

ofﬁcial trial record and are quoted in judgments. At the ICTY, the prosecution and defence

are constantly scrutinising the transcript in court, ready to challenge any aspect of the

interpretation that they consider incorrect, or prejudicial to their cause (Mackintosh, 2015,

p. 192).

As much of the work of counsel requires reference to court translations, court-

room interpretation and transcripts of oral proceedings, it is important to understand

the difference between them, as the nature of their respective sources and modes of

production dictate both the nature and quality of the corresponding product.

Otto Kade (1968), a self-taught interpreter and translation scholar at the Univer-

sity of Leipzig, adopted the English word “Translation”as a German term to cover

both translation (Übersetzen) and interpreting (Dolmetschen) (Pöchhacker, 2004,

p. 10; Munday, 2009, p. 9). Interpreting in his deﬁnition is a translational activity

Effective Communication in Multilingual Judicial Proceedings 233

distinctive for its immediacy, a special form of “Translation”(Pöchhacker, 2004,

p. 9).

As early as the 1960s, Otto Kade (1968)deﬁned interpreting as a form of translation (in the

wider sense) in which (a) the source-language text is presented only once and thus cannot be

reviewed or replayed, and (b) the target-language text is produced under time pressure, with

little chance for correction and revision.

This far-sighted deﬁnition avoids the usual reference to spoken messages and elegantly

accommodates also interpreting from, into or between signed languages, as well as such

variants of interpreting as ‘sight translation’and live subtitling. Foregrounding the aspect of

immediacy, or real-time performance, interpreting could be described more succinctly as a

translational activity in which a ﬁrst and ﬁnal rendition in another language is produced on

the basis of a one-time presentation of an utterance (or text) in a source language

(Pöchhacker, 2009, p. 133).

This deﬁnition of interpreting, with the focus on the “here and now”as opposed to

the oral element is different from the common usage, where interpreting is equated

with the ‘oral rendering of spoken messages’(Pöchhacker, 2004, p. 10). Elena de

Jongh’sdeﬁnition encapsulates the more commonly articulated dichotomy between

oral interpreting and written translation as follows:

Translation generally refers to the transfer of thoughts and ideas from one language (the

source language) to another (the target language) by means of the written word. Interpre-

tation refers to oral communication situations in which one person speaks in the source

language, an interpreter processes this input and produces output in a second language, and

another person (or persons) listen(s) to the interpreted target language version of the original

speaker’s message. The term “translation”, therefore, refers to the processing of written

language while “interpretation”refers to the processing of spoken language. Translation

converts a written text into another written text, while interpretation converts an oral

message into another oral message (de Jongh, 1992, p. 35).

Given that certain interpreting problem triggers commonly encountered in inter-

national courts have an oral source element, it is useful to adopt a deﬁnition that

encompasses elements of both deﬁnitions above. Interpreting could be described as

the immediate and real-time oral or signed rendition of a spoken or physical source

language into a target language, and translation as the written rendition of source

language text into a target language. Both are bilingual processes but translation

lacks the immediacy and orality—at least in the case of a spoken source

—of

interpreting.

Unlike translation or interpretation, transcription is a monolingual process. It is

the conversion of spoken language into written language (Gibbons, 2003, p. 28).

Transcription of oral judicial proceedings is performed live or post facto by court

reporters (also known as stenographers, recorders, transcribers or keepers of the

record (Elias-Bursać,2015, p. 88)). In international criminal proceedings, live or

real-time transcription is common, although not necessarily in all languages of the

For example, sight translation—though spoken—has a written source and thereby lacks certain

problem triggers of simultaneous interpreting.

234 A. Constable

proceedings.

At the ICC, real-time transcription is available in both French and

English, the transcripts of which can be accessed during the proceedings via personal

monitors in the courtroom and interpreter booths. The written transcript of the

proceedings (including the transcription of the interpretation) is published after the

hearing as the record of the oral proceedings.

[A]ll public sessions of the ICTY are web-cast and all its proceedings, whether in public or

closed session, are recorded and transcribed, which places additional burden on the inter-

preters who, unlike translators, work in real time. The level of accuracy expected of ICTY

interpreters is quite a bit higher than in a typical conference setting and can be likened to the

one required for translation (Pavetić,2012; Elias-Bursać,2015, p. 92).

Although courtroom transcripts of interpretation may appear to be a translation—

at least in form (written)—they are not. They remain transcription of the interpreta-

tion due to the process involved in their production. The same is true if a text is read

out in court and the interpretation thereof transcribed; although this constitutes the

conversion of a written text in one language into a written text in another, no written

translation process has actually occurred.

The ﬁlings in relation to Sreten Lukić' Submission Relative to Translation

Veriﬁcation of 31 August 2007 before the International Criminal Tribunal for the

former Yugoslavia (ICTY) are instructive by way of example. In its application to

the Chamber, the LukićDefence advocates a literalist view of the interpreter’s role as

performing “verbatim translation”(Morris, 1995; Laster & Taylor, 1994, p. 112).

In the application, the LukićDefence requested the Chamber to “take steps to

ensure that the translation service is providing verbatim and accurate translation of

the proceedings, so as to preserve the transcript record”as follows:

For purposes of preserving a proper record of these proceedings, and more importantly, for

purposes of preparing cross examination, it is essential for the transcript and record of

proceedings, as much as possible, [to] provide an accurate, verbatim record of the sworn

testimony of witnesses. Without such a record, the integrity of these proceedings is called

into question... (ICTY, 2007, p. 1).

The Registry response highlights the importance of adequately delineating inter-

pretation and translation in terms of their nature, purpose, means of production,

notions of accuracy and qualitative expectations:

The language services provided by the Registry during court proceedings at the Tribunal is

interpretation and not translation. Interpretation is used for oral communication whereas

translation deals with transcription of the written word....

Simultaneous interpretation is the rendition of the speech in the target language as it is being

delivered in the source language. Since interpreters, unlike translators, have to deal with

ﬂeeting messages in real time, synthesizing and editing are not only legitimate interpretation

techniques but they are necessary to make it possible....

Although the record of court proceedings at the International Criminal Tribunal for the former

Yugoslavia (ICTY) was in English and French, real-time transcription was only provided in English

(Elias-Bursać,2015, p. 65). As was the practice at the ICTY and ICTR (International Criminal Tribunal

for Rwanda) (Elias-Bursać,2015, p. 66), ICC transcripts are provided in English and French only, not

in other languages that may be spoken by the accused or witnesses appearing before the court.

Effective Communication in Multilingual Judicial Proceedings 235

[T]he Registry notes that the level of accuracy and completeness of the simultaneous

interpretation services provided for hearings meets the highest standards expected of the

profession (LukićDecision, 2007, pp. 2, 3, 4).

The example echoes Holly Mikkelsons’s (1999:1) assertion that “it is clear that a

verbatim interpretation of courtroom proceedings is meaningless, if not impossible”:

interpreters “must convey the meaning of the source-language message as precisely

as they can within the limits of the target language’s grammar and syntax”. The

Registry response furthermore underscores one of the key differences between

translation and interpretation as the “real time”element of the latter, requiring

interpreters to use certain legitimate interpreting techniques which would be inap-

propriate for written translation.

2.2 Quantitative Output of Interpreters and Translators

Translation can be measured both in terms of source language input or target

language output, for example in the number of words (or standard pages) translated

per day. Quantitative assessments of interpretation are generally not made in terms of

interpreter output but in terms of the speed of source language input, which in

interpretation studies literature is often quantiﬁed in words per minute (wpm).

A common question about source language input for interpreters is whether there

is a maximum delivery rate to be adhered to by speakers (measured in wpm) for

successful interpretation to take place, and if so, what it is. Experiments have been

carried out to ascertain what input speeds (speed of delivery by the original speaker)

result in a higher frequency of errors or omissions by the interpreter (omissions are

mentioned separately here as they can both be accidental errors but also strategic

omissions of redundant or repetitive items, for example, made deliberately to permit

successful interpretation at higher delivery rates).

Kilian Seeber provides a succinct overview of interpreting studies literature on

appropriate delivery rates for speakers who are being interpreted simultaneously,

stating that the input rate recommended for simultaneous interpretation “ranges

between 95 and 120 wpm (Gerver, 1976;Seleskovitch,1978;Lederer,1981). These

recommendations seem warranted: research indicates that omissions, substitutions and

pronunciation errors (Pio, 2003) increase with higher rates of input”, making input rate

a“major constraining factor”in simultaneous interpretation (Seeber, 2011,p.186).

Translation rates are, as mentioned, usually measured in terms of the number of

words per day. Assuming a translator works an 8-hour day and translates 1650 words

per day,

the average hourly translation rate is 206 words, or approx. 100 words per

half hour. On the other hand, a simultaneous interpreter working at the highest

recommended input rate of 120 words per minute (i.e. two words per second) will

The standard United Nations rate is 1650 words per day (UN A/57/289, 2002, p. 13) subject to

revision, a process of quality-control by a senior translator.

236 A. Constable

interpret 3600 words in a 30-min turn (maximum recommended turn length for

simultaneous interpreters). This then raises the question as to why organisations

employ translators at all if simultaneous interpreters are capable of producing oral

translation (which could then be transcribed) of the same quality at 36 times the

translator rate?

2.3 Qualitative Output of Interpreters and Translators

Whereas simultaneous interpreters hear a spoken utterance once and have to formu-

late the message in another language within seconds (or even split-seconds), trans-

lators have the time to consult various resources, e.g. works of reference,

terminology databases, corpuses of similar previously translated texts, etc., as well

as to reread or read ahead in the written text to aid their understanding of the source

material and to ﬁnd the appropriate expression in the target language (Skaaden,

2013, p. 19). Given the constraints of simultaneous interpretation, it is clear that we

cannot have the same qualitative expectations of interpretation as we have of

translation.

This therefore raises the question as to whether, rather than relying on transcripts

of interpretation, full verbatim written translations should be made of transcripts of

original courtroom discourse to ensure the reliability and accuracy of the record of

proceedings, with the simultaneous interpretation itself serving solely to facilitate

communication live in the courtroom. There is indeed a precedent for this, given that

it is the practice at the International Court of Justice. Furthermore, outside of the

judicial environment, transcription of interpretation is by far the exception. Kalina

describes the use of interpreter output as a basis for transcription as a “violation of

the rule that interpretation products are intended only for the moment and to make

people understand each other in a multilingual setting”(Kalina, 2010, p. 94).

However, hitherto international criminal courts and tribunals, which have lengthy

oral proceedings, have chosen not to adopt this modus operandi due to the signiﬁcant

associated time and ﬁnancial constraints. If we take a delivery rate of 120 words per

minute, in a typical court day at the ICC of 270 min (four and a half hours excluding

breaks), we come to a ﬁgure of 32,400 words, which at the above translation output

rates would take approximately 20 days for one translator to produce, or 1 day for a

team of 20 translators.

Here it should be said that the speed of translation is also dependent on many

factors, including the use of footnotes, density of material etc. Given that much

courtroom dialogue may be extemporaneous speech, it may be assumed that trans-

lation of courtroom speech could be performed at higher rates than the 1650 words

per day rate quoted here. However, ofﬁcial court translations at the ICC must also be

revised, which would limit the daily capacity to that of the reviser or team of revisers,

which at the standard UN rate would be 3960 words per day (UN A/57/289, 2002,

p. 13).

Effective Communication in Multilingual Judicial Proceedings 237

Where hearings are held on a daily basis, and in particular where concurrent

hearings are held, the amount of translation required—and therefore the number of

translators required to perform it—would grow exponentially, as would the costs and

delays. This could potentially undermine the accused’s right to expeditious pro-

ceedings, irrespective of the potentially negative budgetary impact on the institution

concerned.

Given that this method has therefore not been adopted at international criminal

courts and tribunals, there is a need to ensure that the quality and accuracy of the

court record is as near to translation level as possible while the method of production

remains transcription of the simultaneous interpretation. It is the contention of this

paper that the court record can meet the levels of accuracy and reliability required for

international criminal proceedings where best practice prevails and courtroom

parties and participants work together to ensure effective multilingual

communication.

2.4 The Process of “Simultaneous”Interpretation

In order for counsel to understand the inherent limitations of simultaneous interpre-

tation, and how to work most effectively within them, it is useful to understand the

cognitive processes involved in interpretation.

Simultaneous interpreting is a highly complex cognitive activity (Gerver, 1974; Moser,

1978; Paradis, 1994) that requires the interpreter to simultaneously listen, analyze, compre-

hend, translate, edit and reproduce in real-time a speaker’s utterance (Moser-Mercer et al.,

1998, p. 47).

Interpretation is not instantaneous, as the word “simultaneous”is sometimes

assumed to convey. The interpreter must comprehend a source language utterance

before delivering it in the target language, something that creates a lag of a few

seconds between the source language input and the target language output. Research

has shown that the average lag, or ear-to-voice span (EVS) as it is known in

interpretation literature, is around three seconds (Seeber, 2011, p. 185).

Although different to the ear-to-voice lag, the interpreting lag, namely the time from initial source

utterance to ﬁnal interpreter output will be cumulated in cases where relay interpretation is used,

where the source language is interpreted into a ﬁrst target language (the “pivot”language) which is

then used as the source language for interpretation into a second (or more) target language(s) (i.e.

the interpretation between two languages is not direct but passes through a third (pivot) language).

Relay interpretation is used where the interpreters do not speak all the languages used in the

courtroom but do share a common pivot language which can be used to provide the relay from

and into those languages they do not speak. This mode of interpretation has been used at the ICC for

simultaneous interpretation at proceedings with Acholi, Lingala, Sango, Swahili and Zaghawa.

238 A. Constable

2.5 Daniel Gile’s Effort Model of Interpretation

Performing the tasks outlined above simultaneously requires intense mental energy

and effort on the part of the interpreter. It is the concept that such energy is ﬁnite that

underpins the “Effort Model”developed by Daniel Gile (1995) to analyse interpre-

tation processes. His model is based on two ideas: that interpretation requires mental

energy, a necessarily ﬁnite resource, and that where the act of interpretation requires

greater mental energy than is available at any given time to the interpreter, this will

result in cognitive overload and a deterioration in performance (Gile, 1995, p. 161).

Although other models have been developed in the ﬁeld of interpretation studies to

describe the interpretation process, Gile’s model is particularly useful when it comes

to explaining “triggers”of interpretation problems and hence the recommendations

that can be made to speakers to avoid them.

According to Gile’s model, simultaneous interpretation consists of the following

Efforts: a Listening and Analysis Effort, a Short-term Memory Effort, a Speech

Production Effort and a Coordination Effort (Gile, 1995, p. 169).

The Listening and Analysis Effort consists of “all comprehension-oriented oper-

ations, from the analysis of the sound waves carrying the source-language speech

which reach the interpreter’s ears, through the identiﬁcation of words, to the ﬁnal

decisions about the ‘meaning’of the utterance”(Gile, 1995, p. 162). The Memory

Effort refers to the short-term memory operations that continually occur in simulta-

neous interpretation, with an interpreter holding information in short-term memory

before releasing it in speech production (Gile, 1995, p. 168). The Production Effort

is what Gile describes as the “output part of interpretation”, which includes ﬁrstly

forming a mental representation of the message to be delivered, planning the speech

and then delivering it (Gile, 1995, p. 165).

Monitoring and correcting speech delivery is an activity common to all speakers,

not only interpreters (Skaaden, 2013, p. 72), a phenomenon described as “self-

monitoring”and “self-repair”(Levelt, 1989). In all types of discourse, speakers

monitor not only what they are saying but also how they are saying it, interrupting

themselves to “make a repair”(error correction). Self-monitoring is not constant but

context-sensitive, meaning that contextual factors, among others, will impact the

degree of attention that a speaker gives to monitoring output as part of the speech

production process at any given time (Levelt, 1989, p. 458).

Finally, the Coordination Effort is required to coordinate the other three (Gile,

1995, p. 169). Generally speaking, at any given time, the interpreter will be applying

each Effort concurrently to a different speech segment and the speciﬁc processing

capacity he or she requires for each Effort can ﬂuctuate within a fraction of a second.

Gile’s model shows us that in order for interpretation to succeed not only does total

available processing capacity have to meet the total requirement, but that the total

capacity has to be distributed in such a way as to meet the requirements of each

interpretation Effort. Any shortfall of capacity in a given Effort may result in failure.

For example, if a speciﬁc problem trigger, e.g., an unfamiliar name or unexpected

concept, forces an interpreter to suddenly redirect capacity from Production to

Effective Communication in Multilingual Judicial Proceedings 239

Listening and Analysis, it may result in a Production failure should the available

capacity for Production drop below the requirement.

With a view to making recommendations for counsel working with interpreters,

the next section will focus on the Short-term Memory Effort, the Listening and

Analysis Effort, and their associated problem triggers.

2.5.1 Short-Term Memory Effort

The amount of information and the length of time for which information is held in

short-term memory before it is released at the production stage will depend on

several factors. One factor affecting this is structural differences between source

and target language. Such differences may oblige the interpreter to hold information

while waiting to hear a key source-language structural element before correctly

rendering the meaning in the target language. An example of this would be an

interpreter waiting for a source-language verb at the end of a sentence prior to

delivering the message in the target language.

Another factor is contextual information: the meaning of an utterance is not

immediately clear but gradually unfolds as more contextual information becomes

available. The more contextual information the interpreter requires before embarking

on production, the more of the speaker’s utterance has to be held in short-term

memory. On the one hand, due to short-term memory’s limitations, if the interpreter

waits too long before releasing information from short-term memory for production,

some information will be lost. On the other hand, extremely slow speech can also

represent a cognitive challenge for interpreters, as it may require the interpreter to

hold information in short-term memory for too long whilst waiting for further

structural or contextual information before production. The interpreter must there-

fore strike the right balance between on the one hand retaining information in short-

term memory for comprehension and structural reformulation, and on the other,

releasing information for production before the short-term memory capacity

becomes overloaded.

Where a live transcript of the source language is available on a monitor in the

booth, and provided the pace of transcription is close to that of the speaker, the

interpreter can also use it as an additional short-term memory aid, for example for

temporary retention of unfamiliar names or numbers, which can then be included in a

segment being interpreted where they might otherwise have been lost.

2.5.2 Listening and Analysis Effort: Audiovisual Comprehension

Where Gile’s Effort Model arguably falls short is that it appears to focus on auditory-

verbal input as the sole source of information in simultaneous interpreting (Seeber,

2017: 464). Although Gile’s description of the Listening Effort encompasses “all

comprehension-oriented operations”, mention is not made of visual input in his

model and it is therefore unlikely that it is included, whereas there is wide consensus

240 A. Constable

among interpreters of the importance of visual information (Seeber, 2017: 464).

Where visual information is lacking, constructing meaning is more demanding and

more error prone due to its ambiguity (Moser-Mercer, 2005; Skaaden, 2013, p. 54;

Skaaden, 2018). Audiovisual information is said to be complementary when infor-

mation provided on one channel can compensate for inadequacies (or resolve ambi-

guities) of information provided on another (Seeber, 2017: 463).

Sensory systems have evolved to work in concert, and normally, different sensory cues that

originate from the same event are concordant in both space and time. The products of this

spatial and temporal coherence are synergistic intersensory interactions within the central

nervous system, interactions that are presumed to enhance the salience of the initiating event.

Thus, for example, seeing a speaker’s face makes the spoken message far easier to under-

stand (Sumby & Pollack, 1954) which is why conference interpreters insist on a direct view

of the speaker and the meeting room. And rightly so, their insistence ﬁnds its justiﬁcation in

the special nature of our sensory systems (Moser-Mercer, 2005, p. 728).

Interpreters are of course not the only professionals for whom multiple sensory

inputs are important. The same can certainly be said of counsel and judges, who have

to assess the demeanour and credibility of witnesses, most often in person but

increasingly via videolink.

By way of example, it was a concern about not being able to “effectively and

accurately assess the testimony and demeanour”of a key witness via videolink that

led the Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR) to

travel to The Netherlands to hear the witness testimony in the trial of Protais

Zigiranyirazo,

rather than remain at the seat of the Tribunal in Arusha, Tanzania,

and take the testimony via videolink from there.

The problem in this case was that when Zigiranyirazo was refused entry into The

Netherlands, the Trial Chamber ruled that he should follow the hearings in Arusha

via videolink. In order that he would not be disadvantaged by this arrangement, the

Chamber ordered that one of the defence counsel for the accused should also attend

the hearings in The Netherlands.

However, the Defence appealed the Decision, arguing that neither Zigiranyirazo

nor his lead counsel, both of whom remained in Arusha connected by videolink,

could observe either the judges or the witness continuously, but only when the

camera was pointed on them, thereby denying them normal visual interaction with

the proceedings. The Appeals Chamber, in its Decision on Interlocutory Appeal of

30 October 2006, decided to exclude all of the testimony that was taken via videolink

on the grounds that the Trial Chamber had failed to accord the accused the right to be

present at his own trial, adding: “although one of the Appellant’s counsel was in the

courtroom with the Judges and the witness, the Appellant himself was thousands of

kilometres away, connected to the proceedings only by means of audio-visual

Zigiranyirazo (Protais) v Prosecutor (Decision on interlocutory appeal, Case No ICTR-2001-73-

AR73, ICL 979 (ICTR 2006), 30 October 2006), [4]. https://www.legal-tools.org/doc/6be72d/pdf/.

Accessed on 30 May 2020.

Effective Communication in Multilingual Judicial Proceedings 241

equipment. The Appellant’s sense of being wronged in such circumstances is well-

understandable”.

While the “virtual”participation of the accused in international criminal pro-

ceedings continues to be controversial

and is indeed exceptional, videolink has

nevertheless become common practice for witness appearances in international

criminal proceedings, particularly for protected or vulnerable witnesses, the modal-

ities of which are set out in Rule 67 of the Rules of Procedure and Evidence of the

International Criminal Court

. Furthermore, the onset of the Covid pandemic also

saw the remote participation of counsel and the judiciary via videolink in partially

virtual hearings at the ICC, and it would seem likely that the possibility of remote

participation for counsel in international criminal proceedings will continue in the

future. However, remote participation in hearings can present challenges to effective

communication in the multilingual courtroom as it introduces an additional element

into the communicative process, namely the quality of the external audiovisual input

provided to the courtroom parties, participants and interpreters.

2.5.3 Listening and Analysis Effort: Problem Triggers

High Speech Density and High Rates of Delivery

In addition to sensory aspects, other factors affect the interpreter’s processing

capacity at any given time. Gile (1995, p. 173) describes high speech density as

“probably the most frequent source of interpretation problems”. It increases

processing capacity requirements because more information must be processed per

unit of time. Numbers, names and acronyms represent high speech density elements

as they are “more vulnerable than others to a momentary processing capacity

shortage because of their short duration and low redundancy”(Gile, 1995, p. 174).

However, high speech density is not only related to speech content but also speech

structure and speed of delivery. The higher the delivery rate, the more information

has to be processed per unit of time.

Given the nature of prepared speeches, which are generally more densely formu-

lated with longer sentences than spontaneous speech (Skaaden, 2013, p. 73), a written

Zigiranyirazo (Protais) v Prosecutor (Decision on interlocutory appeal,Case No ICTR-2001-73-

AR73, ICL 979 (ICTR 2006), 30 October 2006), [21]. https://www.legal-tools.org/doc/6be72d/pdf/.

Accessed on 30 May 2020.

Prosecutor v. Laurent Gbagbo and Charles Blé Goudé (International Criminal Court, Defence of

Mr Charles Blé Goudé, Case No. ICC-02/11-01/15, 6 May 2020)“Public Redacted Version of “Blé

Goudé Defence Urgent Request for Postponement pursuant to Article 67 of the Statute”. Retrieved

January 17, 2021, from https://www.icc-cpi.int/CourtRecords/CR2020_01812.PDF

“A Chamber may allow a witness to give viva voce (oral) testimony before the Chamber by means

of audio or video technology, provided that such technology permits the witness to be examined by

the Prosecutor, the defence, and by the Chamber itself, at the time that the witness so testiﬁes”, and

that “the venue chosen for the conduct of the audio or video-link testimony is conducive to the

giving of truthful and open testimony and to the safety, physical and psychological wellbeing,

dignity and privacy of the witness”.

242 A. Constable

text read at a slower speed could actually have a higher speech density than that of a

faster speech containing little information. However, the delivery rate of written

speeches is usually signiﬁcantly faster than that of spontaneous speeches as they are

“generally devoid of the hesitations, ﬁlled or unﬁlled, which characterize ad-libbed

speech”, thereby adding to the speech density in the delivery (Gile, 1995,p.173).

The lack of spontaneous speech pausing patterns in prepared speech is further

problematic in that they are important communicative elements of extemporaneous

speech; they guide the listener as to where a unit of speech ends and another begins

(like punctuation in written texts) and indicate where the speaker intends to introduce

new information. Linguistic studies have shown spontaneous speech to be marked

by pauses every ﬁve to six words, giving the speaker the opportunity to plan their

speech prior to articulation (Kess, 1992, p. 58; cf. Skaaden, 2013, p. 73). Such

pauses signiﬁcantly aid interpreters.

In light of the abovementioned factors, the advice of most international organisa-

tions is therefore to avoid reading from texts when being interpreted and to moderate

one’s pace when speaking. In this regard, the advice given to counsel pleading before

the Court of Justice of the European Communities (2009)isasfollows:

In the ﬁrst place, it is highly inadvisable to read a text prepared in advance. The reason for

this is that an address prepared in writing is generally made up of longer and more

complicated sentences and is delivered at greater speed than one which is largely extempo-

raneous. It is preferable to speak on the basis of well-structured notes, using simple terms

and short sentences.

In cases where Counsel prefers to follow a text, the same advice applies: simple terms and

short sentences should be used and the text should be read at normal talking speed.

The European Civil Service Tribunal (2014) echoes these recommendations:

D. Speciﬁc features of simultaneous interpretation

64. In cases in which simultaneous interpretation is required, parties’representa-

tives are reminded that it is generally preferable to speak freely on the basis of

notes rather than to read out a text. Likewise, a series of short sentences is

preferable to a long, complicated construction.

65. If, however, oral submissions are prepared in writing, it is advisable when

drafting the text to take account of the fact that it must be presented orally and

should therefore resemble an oral address as closely as possible.

Notes for the Guidance of Counsel in Written and Oral Proceedings before the Court of Justice of

the European Communities: http://www.lexnet.dk/law/download/procedur/Proc12-2.pdf. Accessed

on 30 May 2020.

Practice directions to parties on judicial proceedings before the European Union Civil Service

Tribunal https://eur-lex.europa.eu/legal-content/EN/TXT/?uri¼CELEX:32014Q0714(03),

Accessed on 30 May 2020.

Effective Communication in Multilingual Judicial Proceedings 243

Poor Quality or Lack of Audiovisual Input

Whereas Gile (1995, p. 173) described high speech density as “probably the most

frequent source of interpretation problems”, since the onset of the Covid pandemic,

with the systematic recourse to videoconferencing and the exponential rise in the

interpretation thereof, arguably the most frequent source of interpretation problems

is poor sound (from a spoken language source). Poor audio input, even where still

intelligible to the “normal”listener, is an interpreting problem trigger, causing the

interpreter to divert cognitive resources to the Listening and Analysis Effort, thereby

depleting available resources needed for other areas such as Production.

Skaaden (2018) suggests from research on remote interpreting that interpreters

are more vulnerable than the “normal”listener to audio disturbance, possibly

because their memory is already under pressure, while the masking effect of the

interpreter’s voice over the audio input is another factor that distinguishes the

interpreter from the “normal”listener. The fact that simultaneous interpreters pro-

duce sound themselves as they interpret means they have the challenge of listening

in a noisy environment, given that simultaneous interpreters produce audio output in

one language while having to listen to and process audio input in another (Seeber,

2017: 464).

Speaking and listening at the same time is impossible for any normal person. It is only

rigorous training together with the use of headphones separating to a large extent the input

stream arriving at the interpreter’s ears from the output stream (his/her voice), that makes

simultaneous interpretation possible. Since speaking (formulating a coherent message)

already commands considerable attention of the interpreter, just as is the case for any normal

person, listening, auditory perception and comprehension must require only minimal effort;

in the words of D. Seleskovitch (1968: 210) “l'interprète a besoin d’entendre sans écouter”.

Working under inferior sound conditions is like working from an imperfectly understood

language: a large part of the interpreter’s attention is diverted to reconstructing (or guessing)

the original message with a consequent reduction in the quality of the output.

(Mouzourakis, 1996).

Beyond comprehension issues, it increasingly appears that the poor sound that

has become synonymous with videoconferencing since the onset of the Covid

pandemic has given rise to major health impacts, and in particular auditory com-

plaints, among conference interpreters. According to AIIC TFDI’s(2022) Press

Release on World Hearing Day, “the cause of such auditory health conditions

increasingly appears to be the defective sound generated during such online video-

conferences, for which there are multiple sources: ﬁrst and foremost, the substandard

equipment used by participants and the audio processing performed by the video-

conferencing systems and platforms, in particular dynamic range compression and

background noise suppression.”

There is of course a question mark as to why this

should be affecting conference interpreters to a far greater extent than “normal”

listeners, but the answer may lie in the way that interpreters listen to the input. As

For further information see AIIC’s Technical Note on the Effects of Dynamic Range Compres-

sion and Other Forms of Digital Sound Processing on the Hearing of Conference Interpreters (AIIC,

2022).

244 A. Constable

they are trying to decipher the audio above their own voices, where the audio

becomes unintelligible they may be tempted to increase the volume, thereby also

increasing whatever non-signal elements are in the source and thereby maximising

any negative effects. This does not mean that "normal" listeners are necessarily

immune to this phenomenon however. Sufﬁce to say that where video link or a

videoconferencing platform is used, not only interpreters but all courtroom parties

and participants require audiovisual input of high quality in order to perform their

respective functions properly. Where remote participants connect to a hearing from

their computers via a videoconferencing platform, it is essential that they have the

requisite audiovisual peripherals (external ISO-compliant microphone

and cam-

era), processing capacity, network connection stability and speed in order to provide

optimal audiovisual input to the courtroom parties and participants.

The recognition of the importance of high quality audiovisual input for inter-

preters is underscored in Regulation 64 of the Regulations of the Registry

, which

provides that every effort shall be made to ensure optimal sound (broadcast quality)

for the sake of accuracy and completeness. The ISO standards (ISO 2016a, 2016b,

2016c, 2017, 2019, 2020) provide the relevant requirements both for the quality and

transmission of sound and image provided to interpreters and for the equipment

needed in the booths.

In addition to the use of a microphone of requisite quality, the network connection

of each and every participant in the proceedings is another key factor in quality audio

and video transmission, given that the system is only as strong as the weakest link in

the chain, technically speaking. The AIIC Interpreter Checklist

(AIIC TFDI, 2020)

recommends a wired Ethernet connection for all videoconference participants to

ensure a stable connection. Other recommendations for remote speakers to prevent

audible signal disturbance include turning off all sound notiﬁcations while attending

virtual meetings, eliminating background noise and interference from the local

environment and muting the microphone when not speaking. Further tips for remote

speakers can be found in the document AIIC Covid-19 Distance Interpreting Rec-

ommendations for Institutions and DI Hubs (AIIC, 2020).

AIIC has tested microphones for ISO-compliance and performance for videoconferencing pur-

poses which at the time of writing are to be listed on its website: www.aiic.org.

International Criminal Court. (2018). Regulations of the Registry. Ofﬁcial documents of the

International Criminal Court. https://www.icc-cpi.int/resource-library/Documents/

RegulationsRegistryEng.pdf. Accessed on 31 May 2020.

Regulation 61 (2) of the Regulations of the Registry.

International Asssociation of Conference Interpretors. (2020). “AIIC Interpreter Checklist:

Performing Remote Interpreting Assignments from Home in extremis during the Covid-19 Pan-

demic”.https://aiic.org/document/4845/AIIC-Interpreter-Checklist.pdf. Accessed on

17 January 2021.

International Association of Conference Interpreters (AIIC). (2020). “AIIC Covid-19 Distance

Interpreting Recommendations for Institutions and DI Hubs”.https://aiic.org/document/4839/AIIC

%20Recommendations%20for%20Institutions_27.03.2020.pdf. Access on 17 January 2021.

Effective Communication in Multilingual Judicial Proceedings 245

Should the above measures prove insufﬁcient to ensure the requisite audiovisual

quality to enable effective multilingual communication in the virtual setting, the

Checklist sets out a protocol for interpreter intervention: indicating poor audiovisual

input where this is the case; stating “inaudible”or “not visible”where this is the case;

pausing interpreting to allow for technical problems to be resolved (AIIC TFDI,

2020, p. 10).

Audiovisual materials presented at trial are frequently characterised by poor

sound (overlapping speakers, excessive background noise, faint speech etc.) and

high rates of speech delivery. This is hardly surprising as for the most part they

constitute live recordings of events in the ﬁeld rather than studio recordings made

with professional equipment. As such it can take even the “normal”listener many

attempts to discern the relevant speech, making it far more suitable for transcription

than interpretation. However, once a transcript has been made of the relevant audio,

it can be sight translated by the interpreters for the Courtroom parties and partici-

pants whilst the original video is played. This is the one exception to where

interpreters can “check against delivery”on mic, as the quality of the original

audio is usually too poor to allow the interpreter to check the transcript against the

original audio whilst sight translating the text.

Occasionally audiovisual evidentiary materials are produced in a hearing that are

not in a language spoken by the interpreters present, for example in a language of

lesser diffusion. In such cases the interpreters may be asked to sight translate or read

a translation of the original speech for the record whilst the recording is played. It

goes without saying that the provision of accurate time stamps and line numbers is

critical in such instances to ensure the correct passages are read. In such cases the

interpreters should preface their intervention by stating for the record that they are

not interpreting the language in question, but sight translating or reading a translation

thereof. It should be noted that it is challenging for an interpreter to sight translate

from text whilst simultaneously hearing incoming audio in a different language of

which the interpreter has no understanding, meaning that they may well have to turn

the audio down or off completely to do so. As such counsel should be mindful that

the timing of the sight translation may therefore vary signiﬁcantly from the original,

and can ﬁnish well before or after the video excerpt in question has been played.

3 Interpretation Techniques

3.1 Reformulation

Trained conference interpreters have a range of strategies available to deal with

various problem triggers. One such technique is reformulation: explaining,

paraphrasing and deliberate omission (Gile, 1995, p. 197). For high speech density

or rates of delivery, Jones recommends simplifying, generalizing, economy of

expression, omission etc. in order to “convey as much as possible of the speaker’s

meaning in as few syllables as possible”(Jones, 2002, p. 102).

246 A. Constable

However, both the expectations and usage of court interpretation differ from that

of conference interpretation. It is expected to be more complete, including speech

elements such as hesitation, repetition and false starts that would normally be

omitted in conference interpreting. This is because, unlike their counterparts in

conference settings, courtroom users of interpretation need not only to understand

what a speaker is saying but also—crucially—to assess their demeanour and cred-

ibility. Interpretation of a witness “must mirror the original utterance as closely as

possible so that the triers of fact can assess the person’s credibility”(Mikkelson,

2000, p. 71), an assessment backed up by Kate Mackintosh, Deputy Registrar at

the ICTY.

Interpreters in criminal trials... face the unique challenge of conveying the demeanour of

witnesses without straying into the realm of partiality. A judge listening to ﬁve different

witnesses over the course of a week in court will only hear the voice of the interpreter, who

must reﬂect a positive cooperative tone, or reluctance, anger or sadness, all of which are

important for a judge in evaluating a testimony. Accuracy in court interpretation is about

more than the words, it enables judges to assess credibility (Mackintosh, 2015).

If court interpreters cannot make equal recourse to legitimate and necessary

conference interpreting strategies for dealing with high rates of speech delivery,

there is no other alternative than for speakers to simply slow down.

Interpreter users –lawyers and judges –can assist the process of interpreted communication

by being aware of the need to speak more clearly and slowly, pausing between sentences and

paragraphs, and avoiding long sentences with numerous clauses (Stern, 2012, p. 28).

Given the parties and participants’reliance on live transcription during proceed-

ings, an appropriate pace is also necessary to enable the transcribers to accurately

perform their work as well.

A multilingual courtroom that relies so completely on the interpreters and the on-screen

transcript cannot function unless everyone speaks more slowly than they would in a

monolingual courtroom (Elias-Bursać,2015, p. 122).

However, there are other ways in which court parties and participants can

contribute to the quality of interpretation in international criminal proceedings,

namely by providing interpreters with advance documentation to aid in their prep-

aration. This helps to develop their extralinguistic anticipation capabilities, thereby

reducing the cognitive load on the interpreters during hearings.

3.2 Preparation and Anticipation

By using documents and preparatory brieﬁngs in order to acquire knowledge about a

conference, that is about names, ideas and terms likely to be used or referred to during the

conference, interpreters increase their power of anticipation and therefore decrease their

listening and analysis effort capacity requirements. By doing so, they increase the capacity

left for the other two Efforts, and are likely to reduce the frequency of processing-capacity

recent video

8. clearer?

9. THE INTERPRETER: Message from the interpreters: Usually we do not

interpret

10. videos because of problems with sound and speed. In this occasion, we tried

to do

11. our best, but it is not possible to provide an accurate interpretation

under these

250 A. Constable

12. conditions.

13. PRESIDING JUDGE TRENDAFILOVA: Thank you so much. I think

that we

14. shouldn’t put too much pressure on the interpreters because they wouldn’t

like, as

15. far as I understand, to make inventions, because every single word uttered

could be

16. extremely important. So I would -- just a moment.

17. I would like to suggest that we rely on what has been interpreted right now

plus the

18. transcripts whereby you’re going to make your comments, Mr Desalliers,

and some

19. corrections if you ﬁnd the interpretation that is provided by the Prosecutor’s

ofﬁce at

20. some places inappropriate or imprecise.

21. MR DESALLIERS: (Interpretation) Yes, I would have liked to have

shown the

22. footage and listened to the interpretation at the same time, but that seems to

be very

23. difﬁcult, so I would suggest that we show the videos and I could read out --

perhaps

24. I could pause and perhaps I could read out parts of the transcript that I think

are of

25. relevance and I could make reference to the extracts that way. It wouldn’tbe

1. the -- quite the same thing. It would be me speaking, but I do understand the

2. difﬁculties that the interpreters are facing.

3. PRESIDING JUDGE TRENDAFILOVA: Mr Desalliers, I think that ﬁrst and

4. foremost we have to pay tribute to the professionalism of the interpreters

and that

5. they would like to adhere to the oath that -- under which they are doing their

job.

Although a reason for interpreters not intervening in a conference setting may be

the concern that “the interpreter may lose credibility”(Gile, 1995, p. 200), the above

example shows that in a court setting where judges are aware of the difﬁculties of

ensuring the highest levels of accuracy and reliability in interpretation, such inter-

vention is nevertheless appreciated.

Teamwork and effective booth partnering are intrinsic elements of conference

interpreting, and are fundamental in interpreting international criminal proceedings

Prosecutor v. Bosco Ntaganda. (Transcript) (Case No. ICC-01/04-02/06, 12 February 2014),

pp. 57–58. https://www.icc-cpi.int/Pages/record.aspx?docNo¼ICC-01/04-02/06-T-9-Red-ENG,

https://www.legal-tools.org/doc/d3e5d2/pdf/. Accessed on 30 May 2020.

Effective Communication in Multilingual Judicial Proceedings 251

(Stern, 2012, p. 22). They are key to the quality of the interpreted output of a

particular booth.

The off-mic (“passive”) interpreter supports the on-mic (“active”) interpreter

noting numbers, acronyms, proper names, unfamiliar or technical terms; researching

terminology and quotations; locating relevant passages of documentation; checking

their booth partner’s interpreted output against the ﬂoor delivery and noting any

substantive errors for immediate (on-mic) or subsequent correction; as well as taking

over from their booth partner should anything occur that would prevent the on-mic

interpreter from continuing (e.g. coughing ﬁt).

Here it should be noted that the onset of the Covid-19 pandemic has seen many

conference interpreters having to work alone in the booth or even from their homes

for the ﬁrst time. Although it is possible to have a direct view of one’s teammate in

an adjacent booth and follow their interpreting, this is still well short of the

immediate and effective teamwork that is the hallmark of conference interpreting.

Nevertheless, it provides far greater possibilities for cooperation than where inter-

preters are dispersed at several different locations trying to communicate with each

other e.g. via chat services, deprived of physical colocation with their booth partner

(s) and needing to monitor different devices simultaneously whilst interpreting. This

requires an additional mental effort from the interpreter, thereby increasing the

cognitive load at any given time, potentially giving rise to overload and errors.

3.4 Error Correction

Even where interpreters are able to work closely together and with all courtroom

parties and participants to ensure effective multilingual communication, given the

nature of interpretation and the levels of reliability and accuracy required for the

transcript, which constitutes evidence at trial, it is clear that substantive errors can

occur nevertheless. In the event of “linguistic misunderstandings or errors of inter-

pretation”Regulation 65 (2) provides that interpreters shall “endeavour to correct the

misunderstanding or error immediately, during the hearing itself”(ICC RoR: 65 (2)).

As such, ICC interpreters frequently correct themselves (and thereby the tran-

script) on-mic, prefacing such corrections with the words “the interpreter corrects”.

Such immediate intervention to correct substantive errors can save the parties and

participants valuable time during their examination of a witness.

The availability of a live transcript of the original language in the booth can be a

great aid to the off-mic interpreter in monitoring the output of his/her colleague, and

even to the on-mic interpreter, provided that the transcription speed is close to that of

the original speaker. It can also enable courtroom participants to ﬂag up errors and

The author prefers the terms off-mic and on-mic to Gile’s“passive”and “active interpreter”

terminology (Gile, 1995, p. 193), due to the very active role played by the off-mic interpreter in the

overall quality of the interpreted output from the booth.

252 A. Constable

have them resolved speedily, as can clear and established procedures for error

correction:

The transcript scrolling by on everyone’s video monitors has vastly improved the expedi-

ency of error correction, and this, in turn, has meant that judges are less often misled by

errors which might otherwise impede their deliberations. Hence a well-functioning translat-

ing institution is not one where errors never occur, but one where there are mechanisms for

correcting them quickly so that they do not distort or otherwise impede the deliberations

(Elias-Bursać,2015, p. 140).

The following are some examples of live, on-mic error correction by ICC

interpreters:

WITNESS: he replied to me, saying...

12 President Patassé - asked us to kill all the children over the age of two. So,

13 when I learnt his answer, I saw that my boys and myself were considered

as dead,

14 and when I went back home I was completely sorrowful and I decided to

get all my

15 children to leave, and I decided to stay.

16 THE INTERPRETER: The interpreter corrects, kill all the boys over the age

of two

17 and not all the children.

WITNESS

24 So they executed them in the village, and they took the village chief

25 who they presented to their leader and then they executed him as well.

And when

1 they executed him, I was not there. And I would also inform you that when

he was

2 executed, he was a -- he was cooked and they forced the mayor to eat the

ﬂesh. And

3 when we arrived in the morning, the mother --

Prosecutor v. Jean-Pierre Bemba Gombo (Transcript) (Trial Chamber III, Case No ICC-01/05-01/

08, 21 January 2011. https://www.icc-cpi.int/Pages/record.aspx?docNo¼ICC-01/05-01/08-T-51-

Red2-ENG,https://www.icc-cpi.int/Transcripts/CR2015_02808.PDF. Accessed on 31 May 2020.

Effective Communication in Multilingual Judicial Proceedings 253

4 THE INTERPRETER: The mayor, corrects the interpreter.

Sometimes the interpreter will go so far as to alert the parties and participants to

the exact place in the real-time transcript where an interpretation error was made:

THE INTERPRETER: And the interpreter corrects: Page 7, line 24, is only

ofﬁcials

Further corrections can also be made to the transcript after the hearing using a

formal procedure on the initiative of the interpreters themselves or at the request of

the parties and participants to the proceedings. Procedures for post-hearing error

correction are set out in Regulation 65 (3).

4 Effective Communication in Multilingual Judicial

Proceedings

4.1 Judges’Role in Managing Courtroom Proceedings

As mentioned, the judges are ultimately responsible for ensuring a fair trial, and

judges at the various international criminal courts and tribunals have taken an active

role in addressing linguistic issues arising in the cases they have adjudicated.

Different judges have different styles for coordinating the work of the courtroom, but

together they have, over the life of the Tribunal, established precedents not just for

jurisprudence, but for how to steer translation and interpreting in a multilingual trial

(Elias-Bursać,2015, p. 241).

The role of the presiding judge in monitoring and controlling courtroom communication can

be crucial. ICTY judges have been known to intervene for linguistic reasons (for example, in

cases of excessively long questions, or questions containing more than one question). Some

of them were reported to repeat their statements for clarity of understanding, which beneﬁts

the interpreters, the defence and the witnesses. Judges from the continental legal system were

reported to restrain allegedly aggressive counsel in order to remind them that their tactics

were inappropriate in a bench trial –“Vous n’êtes pas devant le jury”(Stern, 2001, p. 272).

Prosecutor v. Jean-Pierre Bemba Gombo (Transcript) (Trial Chamber III, Case No ICC-01/05-

01/08, 30 May 2011, pp. 17–18. https://www.icc-cpi.int/Pages/record.aspx?docNo¼ICC-01/05-01/

08-T-119-Red2-ENG,https://www.icc-cpi.int/Transcripts/CR2015_02808.PDF. Accessed on

31 May 2020.

Prosecutor v. Jean-Pierre Bemba Gombo (Transcript) (Trial Chamber III, Case No ICC-01/05-

01/08, 07 May 2012. https://www.icc-cpi.int/Pages/record.aspx?docNo¼ICC-01/05-01/08-T-51-

Red2-ENG,https://www.icc-cpi.int/Transcripts/CR2015_02808.PDF. Accessed on 31 May 2020.

Prosecutor v. Thomas Lubanga Dyilo (Trial Chamber I, Case No ICC-O1/04-01/06, 18 June

2009) “Decision on discrepancies between the English and the FrenchTranscripts and related

issues”. https://www.icc-cpi.int/CourtRecords/CR2009_04635.PDF.Accessed on 17 January 2021

254 A. Constable

During the Charles Taylor trial, for example, the judge drew the prosecutor’s attention to the

ineffective use of the double negative and requested rephrasing the questioning (Stern, 2012,

p. 26).

4.2 Examples of Best Practice

If we now examine the guidelines issued by Presiding Judge Fulford in the Lubanga

case (2009) regarding speed, we can see the awareness there is of the contribution of

all parties to successful communication in multilingual proceedings:

43. All those speaking in court must ensure that their delivery enables the

interpreters and court reporters to work at a reasonable and reliable speed.

Counsel must constantly watch the relevant transcript screen (viz. that which

shows the language being used by the interpreters), monitoring the progress of the

questioning, and creating gaps whenever necessary. Particular attention should be

paid to ensuring there is a pause between speakers (critically, two people should

never speak at the same time), as well as to the marked problems that can exist

when a witness speaks Swahili or Lingala, or a speaker has a strong accent.

44. Names should always be spelt into the record whenever they are ﬁrst used,

and care must be taken over dates and numbers. If one has not already been

provided, a list of “usual”names, locations and acronyms is to be provided by the

prosecution, in consultation with the parties, the participants and the court ofﬁcer,

within 10 days of the date of this Decision.

45. The Chamber will henceforth enforce a pace (e.g. the speed and manner of

delivery) which is generally more measured.

PRESIDING JUDGE FULFORD:

19 Finally, can I remind everyone about speed. It is very easy to

20 forget that there are stenographers and interpreters. Rather than

21 speaking in an unnaturally slow -- at an unnaturally slow pace, could you

22 please try and build in very short gaps as you go through to give the

23 interpreters and the stenographers an opportunity to catch up. If I feel

24 it is running away and you see my hand going up and down, that is not an

Prosecutor v. Thomas Lubanga Dyilo (Trial Chamber I, Case No ICC-O1/04-01/06, 18 June

2009) “Decision on discrepancies between the English and the French Transcripts and related

issues”.https://www.icc-cpi.int/CourtRecords/CR2009_04635.PDF. Accessed on 17 January 2021.

Effective Communication in Multilingual Judicial Proceedings 255

25 indication to speak more quietly. It’s an indication to slow down.

12 PRESIDING JUDGE MINDUA:[9:38:50] (Interpretation) Thank you. Thank

you

13 very much

14 Now I have some issues to address of a practical nature. You must take into

account

15 throughout your testimony that what is said in this courtroom is transcribed by

16 stenographers and it is simultaneously interpreted into several languages by

17 interpreters. Andas such, it's important to speak into the microphone and to do so

18 clearly and slowly. Only speak when the person who has asked a question has

19 ﬁnished asking the question

20 When you are asked a question, please count up to three, not aloud, but to

yourself

21 before answering. This pause is essential in order for us to be able to hear you

22 correctly and to ensure that your testimony is duly recorded

4.3 Summary of Recommendations for Counsel

On the basis of the above, the following recommendations can be made for counsel

for optimal communication in multilingual criminal proceedings:

Hearing Preparation

1. Provide the interpreters with any speaking notes or other documents you will rely

on during the hearing. Be as speciﬁc as possible as to which pages or paragraphs

of documents you intend to use during the hearing to enable the interpreters to

prepare as effectively and thoroughly as possible.

Prosecutor v. Thomas Lubanga Dyilo (Transcript) (Trial Chamber I, Case No ICC-01/04-01/06-

T-107-ENG, 26 January 2009, p. 3. https://www.icc-cpi.int/Pages/record.aspx?docNo¼ICC-01/04-

01/06-T-107-ENG,https://www.icc-cpi.int/Transcripts/CR2009_00591.PDF. Accessed on

31 May 2020.

Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud (Transcript) (Trial

Chamber X, Case No ICC-01/12-01/18, 08 Nov 2020, p. 4. https://www.icc-cpi.int/Pages/record.

aspx?docNo¼ICC-01/12-01/18-T-019-Red-ENG,https://www.icc-cpi.int/Transcripts/CR2020_

05182.PDF. Accessed on 17 January 2021.

256 A. Constable

Use of Audio Equipment

2. Take off your headphones or push them back off your ears when speaking in the

courtroom—listening to yourself, or the interpreter’s rendition of what you have

said can be very distracting for you as a speaker.

3. Remember to speak into your microphone, and remind a witness to do the same if

necessary. Switch the microphone off after speaking.

4. Use a wired Ethernet connection with ISO-compliant headset or headphone and

microphone if participating in a hearing from a remote location.

Extemporaneous Speech

5. If possible, speak extemporaneously or from notes. Your speech will generally be

slower and your speech patterns more natural if you do so.

6. Speak at a moderate pace, for the purposes of interpretation 95 to 120 wpm.

Reading from a Written Text and Quoting Sources

7. Although providing written texts in advance will aid interpreters in dealing with

denser linguistic structures, the above caveats regarding speed above still apply.

To become accustomed to them it may help to practice reading your prepared text

aloud and timing yourself until such speeds come naturally.

8. When reading try to retain natural speech patterns that convey meaning such as

pauses and variations in intonation. These are also hallmarks of good oratory,

irrespective of the environment. By pausing at full stops, in addition to signalling

natural breaks, you also allow the interpreters to catch up, thereby reducing the

interpretation lag.

9. If quoting a speciﬁc documentary source (e.g. transcript, ﬁling or evidentiary

material), state the reference details and stipulate the language version the

reference details relate to (page numbers will usually differ from one language

version to another) prior to quoting or commenting on the substance. This is

useful for all court participants, and particularly for interpreters to locate the exact

passage concerned in real-time and then use the document as an aid to providing

accurate and complete interpretation.

Three-Second Rule

10. Due to the lag in interpretation, which increases where there is use of relay

interpretation, when taking the ﬂoor make sure to leave a 3–5 second pause to

allow the interpretation of the previous speaker to ﬁnish. This will also prevent

speakers from overlapping and is particularly important when examining a

witness who speaks the same language. Counsel may also remind a witness to

make a similar pause before answering each question put.

Proper Nouns, Acronyms and Numbers

11. Spell out names and acronyms the ﬁrst time they are used. Acronyms should

certainly be explained if they are not familiar to the parties and participants. It is

also helpful, when quoting reference numbers, to give the numbers individually

rather than provide a lengthy sequence; i.e. 498746 should be said as four-nine-

eight-seven-four-six rather than four hundred and ninety-eight thousand, seven

hundred and forty six.

Effective Communication in Multilingual Judicial Proceedings 257

12. If you have a list of names and acronyms that you will be using, please provide

the interpreters and court reporters with a copy.

Presentation of Audio or Audiovisual Materials

13. If you intend to present recorded audio or audiovisual material in court, provide

interpreters (and possibly other parties and participants in the courtroom) with a

transcription thereof one or more days prior to its use.

Use of Appropriate Language

14. Remember in particular when talking to witnesses that they may come from very

different cultures where certain legal concepts under common law, civil law or

international criminal law may not exist and will have to be paraphrased by

situation language interpreters. Similarly use of certain phrasing common in

national courts such as double negation, highly idiomatic or legalistic language

etc. may give rise to confusion when interpreted for witnesses into situation

languages, in particular where there is the added element of relay

And Finally

15. Remember that the interpreters are there to help you communicate as effectively

as possible!

5 Conclusion

Effective multilingual communication is at the heart of a fair trial, not only in

international criminal proceedings but in all multilingual courtroom environments.

Courtroom practice at the International Criminal Court shows that a multilingual

court is not simply a monolingual environment with simultaneous interpretation, but

a multilingual judicial environment in which each and every party and participant to

the proceedings is aware of their responsibility for ensuring effective multilingual

communication, with the presiding judge the ultimate arbiter thereof.

Despite the inherent limitations of simultaneous interpretation, where courtroom

parties and participants work together, it is possible both to ensure accurate com-

munication in the courtroom and to expeditiously produce a reliable written court

record of interpreted oral proceedings. Although occasional linguistic errors can and

do occur, effective review and correction strategies underpin the reliability of the

ﬁnal court record.

By way of conclusion, it is hoped that the insights provided into the process of

simultaneous interpretation, the best practice at the ICC and other international

courts and tribunals, and the recommendations made are sufﬁcient to aid counsel

communicate effectively not only in international criminal proceedings but also in

other bilingual and multilingual environments.

258 A. Constable

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Andrew Constable is a Court Interpreter at the International Criminal Court (ICC) in The Hague,

the Netherlands, and former Vice-President of the International Association of Conference Inter-

preters (AIIC). He is a member of AIIC’s Advisory Board (AB), AIIC’s Executive Committee

Advisor on Distance Interpreting, Coordinator of AIIC’s Taskforce on Distance Interpreting

(TFDI), Member and former Vice-Chair of AIIC’s Staff Interpreters’Committee (CdP), Member

of AIIC’s ISO Group and ISO/TC 37/SC 5 expert (WG 2 & 3), and Member of AIIC’s Technical

and Health Committee (THC).

Andrew graduated from the University of Bradford with an MA in Interpreting and Translation

in 1998, after which he was recruited by the European Institute of Public Administration in

Maastricht, The Netherlands. It was at this time that he developed an interest in law, and was

awarded a Postgraduate Certiﬁcate in EU Law in 2001.

He joined the ICC in 2004 and continued his legal studies, following the International Criminal

Law module of the University of Bristol’s LLM programme in 2005. His work at the Court has

involved training simultaneous interpreters with languages of lesser diffusion (Acholi, Lingala,

Sango and Zaghawa) for international criminal proceedings, for which he took a Master of

Advanced Studies (MAS) in Interpreter Training at the University of Geneva in 2011.

He has also participated in a KU Leuven project funded by DG Justice of the European

Commission on training interpreters with languages of lesser diffusion (TraiLLD), and is a member

of the European Commission’s DG Interpretation’s Informal Working Group on Conference

Technologies.

He continues to conduct research on new technologies, distance interpreting, court interpreting

and interpreter training, supporting training and professional development initiatives for students,

interpreters and interpreter trainers wherever possible.

262 A. Constable

Unseen and Unsung: Language Services at the International Criminal Court and Their Impact on Institutional Legitimacy

Chapter

Aug 2019

Leigh Swigart

Legitimacy of Unseen Actors in International Adjudication - edited by Freya Baetens August 2019

The Origins of Simultaneous Interpretation: The Nuremberg Trial

Book

Jan 1998

Francesca Gaiba

Introduction to Court Interpreting

Book

Dec 2016

Holly Mikkelson

The Routledge Companion to Translation Studies

Book

Jan 2009

Jeremy Munday

Evidence in International Criminal Trials: Confronting Legal Gaps and the Reconstruction of Disputed Events

Book

Feb 2013

Mark Klamberg

Basic Concepts and Models for Interpreter and Translator Training: Revised edition

Book

Nov 2009

Daniel Gile

Basic Concepts and Models for Interpreter and Translator Training is a systematically corrected, enhanced and updated avatar of a book (1995) which is widely used in T&I training programmes worldwide and widely quoted in the international Translation Studies community. It provides readers with the conceptual bases required to understand both the principles and recurrent issues and difficulties in professional translation and interpreting, guiding them along from an introduction to fundamental communication issues in translation to a discussion of the usefulness of research about Translation, through discussions of loyalty and fidelity issues, translation and interpreting strategies and tactics and underlying norms, ad hoc knowledge acquisition, sources of errors in translation, T&I cognition and language availability. It takes on board recent developments as reflected in the literature and spells out and discusses links between practices and concepts in T&I and concepts and theories from cognitive psychology and psycholinguistics.

Speaking: From Intention to Articulation

Book

Jan 1993

Willem J. M. Levelt

In Speaking, Willem "Pim" Levelt, Director of the Max-Planck-Institut für Psycholinguistik, accomplishes the formidable task of covering the entire process of speech production, from constraints on conversational appropriateness to articulation and self-monitoring of speech. Speaking is unique in its balanced coverage of all major aspects of the production of speech, in the completeness of its treatment of the entire speech process, and in its strategy of exemplifying rather than formalizing theoretical issues. Bradford Books imprint

Psycholinguistics: Psychology, linguistics, and the study of natural language

Book

Jan 1992

Joseph F. Kess

Remote Interpreting: Potential Solutions to Communication Needs in the Refugee Crisis and Beyond

Article

Aug 2018

Hanne Skaaden

Remote interpreting (RI), where the interpreter communicates with the interlocutors via technological solutions across geographical distance, enhances the availability of trained interpreters in the public sector and institutional discourse in general. In refugee crises, where new unexpected language needs may arise, access to skilled interpreters presents a particular challenge. RI is an apt solution in such cases. Yet, although the professionals who are in need of interpreting services within the legal and health systems embrace the option of RI, the interpreters themselves seem less enthusiastic. They report to experience more challenges and stress in RI than in onsite interpreting. Research suggests that for RI to succeed, the interpreters’ working conditions require special attention and caution. Lending ears to the interpreters is therefore worthwhile in trying to identify what aspects should receive special attention during RI. Approaching RI in an action research mode, this article reports on interpreting students’ reflections on their experiences with RI via Skype in an online classroom setting, as well as their reflections on their real-life experiences with RI in legal and healthcare settings. The qualitative analysis draws on logs from text-only chat sessions, in which the students describe challenges with feedback signals, turn-taking and information overflow, leading to increased stress during RI. However, they also offer suggestions as to what can be done by those in charge of institutional encounters to address these challenges and improve the quality of the Remote interpreting.

Forensic Linguistics: An Introduction to Language in the Justice System

Book

Jan 2003

John Gibbons

Translating Evidence and Interpreting Testimony at a War Crimes Tribunal

Article

Jan 2015

Ellen Elias-Bursac

Effective Communication in Multilingual Judicial Proceedings

Abstract

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