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Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
1
The Impacts of English-Language Hegemony on the International Criminal Court
Leigh Swigart*
Abstract The ICC’s working language policy conforms to the mold of many other
international legal institutions. All staff members must be proficient in at least one of its
working languages, English and French. As in other comparable institutions, however, the
reality is that English has become the Court’s lingua franca. What does the dominant role of
English mean for the ICC’s ability to further the international criminal justice project? How
does the status of English at the Court privilege those professionals for whom it is a native
language, as well as the legal framework they bring with them? What kinds of conceptual
limitations does dependence on a single language create for an institution aiming to promote
what it considers globally applicable principles? Does the ICC’s objective of delivering
global justice enable, in fact, the dominance of the contemporary worldwide lingua franca
without too much pushback? This chapter, based on a multi-year ethnographic project on
how the ICC addresses diverse language challenges, explores the impact of the uneven status
of the Court’s working languages on those who work at and with the ICC, as well as on what
the Court conveys to the world through the communications of its top officials, its judgments,
its outreach activities, and its everyday language choices. It is shown that English-language
hegemony is not only entrenched but has detrimental effects for the ICC in both practical and
symbolic spheres, rendering the Court less efficient while also undermining its mission as a
global institution.
Keywords International Criminal Court; Language policy; Language ideology;
Translanguaging; Interpretation and translation; English as a lingua franca
Contents
1. Introduction
*The author is Director of Programs in International Justice and Society, International Center for Ethics,
Justice and Public Life, Brandeis University. E-mail: swigart@brandeis.edu.
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
2
2. The case of Language Policy v. Reality
2.1 What about the ICC Statute?
2.2 Voices of the Court
2.3 Does English-language dominance really matter?
3. Practical considerations: what does English-language hegemony mean for day-to-day
activities?
3.1 A mountain of translation
3.2 The advantages of having English as a first language
3.3 A dearth of French-speaking judges
3.4 Artificial intelligence to the rescue?
4. English-language dominance and conceptual limits
4.1 Thinking outside the linguistic box
4.2. A multilingual institution with a monolingual ideology
5. Conclusion
References
By the same process whereby man spins language out of his own being, he ensnares himself
in it; each language draws a magic circle round the people to which it belongs, a circle from
which there is no escape save by stepping out of it into another.
- Wilhelm von Humboldt
1
1. Introduction
The Chair of the NGO Committee on Language and Languages, Humphrey Tonkin, recently
described the new entity’s aim like this: ‘We hope to bring the attention of the NGO
community and the United Nations itself to the need for international action to address the
problem of linguistic exclusion which, even if it’s often ignored, manifests itself in every
aspect of international affairs and creates both practical and psychological alienation’.
2
Such
1
Cited in Cassirer 1946, p 9.
2
Tonkin 2021.
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
3
alienation is particularly notable when it occurs within institutions which purport to be
‘global’ and whose very mandates promote equity and justice. This is the case with the ICC
(hereafter also the Court).
The ICC’s working language policy conforms to the mold of many other international
legal institutions. All staff members must be proficient in at least one of its working
languages, English and French, with the standard formulation in most vacancy
announcements reading, ‘Working knowledge of the other is desirable’. As in other
comparable institutions, however, the reality is that English has become the Court’s lingua
franca.
What does the dominant role of English mean for the ICC’s ability to further the
international criminal justice project? How does the status of English at the Court privilege
those professionals for whom it is a first language, as well as the legal framework they bring
with them? What kinds of conceptual limitations does dependence on a single language create
for an institution aiming to promote what it considers globally applicable principles? Does
the ICC’s objective of delivering global justice enable, in fact, the dominance of the
contemporary worldwide lingua franca without too much pushback?
This chapter, based on a multi-year ethnographic project that examined how the ICC
addresses diverse language challenges,
3
highlights the voices and perspectives of persons
interviewed across the Court’s units and functions. I explore various impacts of the uneven
status of the Court’s working languages on those who work at and with the ICC, and on what
the Court conveys to the world through the communications of its top officials, its judgments,
its outreach activities, and its everyday language choices. It will be shown that the hegemony
of a single language, English, carries with it practical and conceptual impacts that not only
render the Court less efficient but tarnish the global image that the ICC so desires to project.
English-language dominance could thus be seen as undermining the counter-hegemonic
potential that many originally foresaw in the international criminal justice project.
3
Between 2017 and 2019, I carried out more than 60 interviews – mostly in English with some conducted in
French – with persons who either provided language services at the Court or regularly used them for their
work. The professional positions of interviewees included: language service experts in both the Registry’s
Language Services Section and the Language Services Unit of the Office of the Prosecutor (field and
courtroom interpreters, translators, terminologists, transcribers, court reporters, supervisors and coordinators);
investigators and prosecutors; members of defence teams, including legal counsel, case managers, and interns;
judges and legal officers; judicial cooperation and situation analysis staff; diverse staff working with and
representing victims; psychologists and psychosocial evaluators; and outreach and communications staff.
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
4
2. The case of Language Policy v. Reality
The ICC was created to participate in a ‘global fight to end impunity’ for individuals charged
with ‘the gravest crimes of concern to the international community’.
4
Despite the use of
words suggesting a world-wide mandate, the Court’s true global impact has been frequently
challenged over its first twenty years of operation, whether in reference to its geographically
targeted prosecutorial choices,
5
its Western-inspired legal foundations,
6
or other unrealized
aims and claims. The ICC’s use of English as its default lingua franca constitutes another
example of the Court’s sleight-of-hand whereby expansive aspirations in theory are mutated
into reduced outcomes in practice.
The ICC is not, of course, the only institution with this particular language problem. The
growing domination of English in the field of international law and organizations is easily
documented, and a number of scholars have laid out the implications of this hegemony.
7
In
her provocative monograph Is International Law International?, for example, Anthea
Roberts describes a number of ways in which the increasing turn toward English has shaped
the field.
8
Writing on the same subject, Justina Uriburu succinctly captures the essence of
what she calls ‘English-centrism’:
The importance of the relationship between language and international law
cannot be overstated, not least because of the discipline’s universalistic pretence.
The choice of language significantly determines the way in which international
law is made, interpreted, and applied, what knowledge is produced by scholars,
and the participants of the conversation.
9
This section describes a number of areas in which the ICC’s policies around language are
out of sync with its ‘universalistic pretence,’ a disconnect that creates problematic optics for
the Court.
4
ICC website: https://www.icc-cpi.int/about.
5
A good discussion of this phenomenon can be found in Ba 2020.
6
Fraser 2022 provides an overview of scholarly literature on this topic.
7
See e.g. Terris et al. 2007; Bohlander 2014; Tomuschat, 2017; and Cohen 2018.
8
Roberts 2017.
9
Uriburu 2020.
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
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2.1 What about the ICC Statute?
The ICC’s ‘Rome Statute’ clearly states that ‘[t]he working languages of the Court shall be
English and French’.
10
But as one ICC staff member in a leadership position put it, ‘We have
officially Article 50 of the Rome Statute, with two working languages, English and French.
But to be honest, it’s English and English’.
11
When asked to comment on the balance between
the two languages within the Court, another interviewee bluntly stated, ‘There is no balance.
It is becoming English almost exclusively’.
12
A third interviewee echoed this view in
exasperation: ‘There is no balance! We French-speaking people tend to speak English
because nobody wants to make an effort to speak French… It’s a shame, because the two
languages should be at the same level.’
13
The disparity between what is indicated on paper and what happens within the Court may
come as a surprise to persons new to the ICC. An interviewee from a French-speaking African
country, when first joining the Court as an intern in the Office of the Prosecutor, fully
expected to carry out his duties in the working language he spoke best.
But then quickly I realized that French wasn’t enough. I was a little bit shocked
because my little world was, in my country, it was more French and our local
languages. For me, when they say there are two working languages – I was
expecting equal treatment when it came to the two languages. But I learned then
that all meetings were in English. All of the reports were in English. Major
documents were in English. So, yeah, I said, ‘Oh well, I need to go back again to
my English and get it stronger and more fluent’.
14
This imbalance between the two working languages carries over to official and judicial
outputs of the Court, a phenomenon captured by the phrase Version française à suivre –
10
These two languages in addition to Arabic, Chinese, Russian and Spanish serve as the Court’s official
languages. ICC Statute Article 50.
11
Author interview RD-4 (6 June 2017).
12
Author interview RL-7 (2 June 2017).
13
Author interview RL-12 (7 June 2017)
14
Author interview OTP-5 (27 June 2019).
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
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‘French version to follow’. One sees this phrase appended to official memos that are
circulated to Court staff, to speeches delivered by top administrators, and to trial judgments.
Due to the sheer volume of documents to be translated by the Registry’s Language Services
Section (called LSS for short), and its chronic understaffing and underfunding, the French
version is often delayed or may not ever follow at all.
15
A quick perusal of the ICC’s French-
language website shows that links to decisions more often than not lead the user back to the
English-language version, the only one available. Significantly, this holds true for materials
related to cases from Francophone countries like the Democratic Republic of the Congo,
Central African Republic and Côte d’Ivoire. A past president of the ICC once circulated a
lengthy all-staff memo on a critical topic in English, explaining that a French version would
not be prepared for budgetary reasons and directing those who wished to read it in French to
use Google Translate. This direction was issued despite LSS having repeatedly told ICC staff
to refrain from using such machine translation websites as they are not confidential
16
.
The apparent lack of institutional concern over the second-class position of French, despite
its equal status in the ICC Statute’s Article 50, is particularly striking given the Court’s
careful regard for the language rights of accused persons, as laid out in Article 67(1). Accused
persons are guaranteed the right:
• ‘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’;
17
• ‘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.’
18
I have examined in detail elsewhere the extraordinary efforts made by the Court’s
Language Services Section to ensure that accused persons, as well as those testifying during
trials, can participate in proceedings in the most appropriate language, no matter how
challenging it may be to recruit, and frequently to train in-house, interpreters and translators
15
Personal communication with former Registry staff member (21 May 2021).
16
Ibid.
17
ICC Statute Article 67(1)(a).
18
ICC Statute Article 67(1)(f).
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
7
for that language.
19
The Language Services Unit of the Office of the Prosecutor also provides
investigators, often the first Court staff to visit a ‘situation country’, with field interpreters in
local languages who are critical for the collection of witness and victim statements.
20
As of
2022, LSS is providing services in 45 languages in addition to English and French. This list
includes over 30 African languages, some of them categorized as ‘languages of lesser
diffusion’, which means that they have few speakers in a given location, are non-standardised
and largely oral, and for which few or no accredited interpreters exist.
21
The ICC’s Outreach
Section, along with the various units that work with victims and witnesses, also take great
pains to interact with their target audiences and clients in local languages and to use
appropriate modes of communication in order to maximize the comprehension of their
messaging.
22
French is a widely spoken language not only in Europe but also in Africa, due to France’s
widespread colonial presence on that continent into the mid-20th century and the adoption of
French as an official language by many newly independent states (much as Britain’s former
colonies often chose English as an official language). French has consequently played an
important role as a ‘situation language’ in ICC cases focused on crimes in the Democratic
Republic of the Congo, Central African Republic, Côte d’Ivoire and Mali. Furthermore, it is
easy to find instruction in French and there already exists a veritable army of professional
interpreters and translators for that language. The point here is this: if the ICC wished to
respect the working language status of French, it would be a much simpler matter than
providing services in some of the rarer languages that the Language Services Section has
successfully tackled.
2.2 Voices of the Court
When it comes to the public image of the ICC, persons in the highest leadership positions
loom large. The top officials of the Court’s principal organs – Chambers, the Office of the
19
Swigart 2019, p 286-7.
20
Ibid.
21
See Balogh et al. 2016.
22
Author interview RP-2 (8 June 2017); author interview RV-2 (7 June 2017); author interview RL-16 (17
October 2018); author interview RV-4 (17 October 2018).
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
8
Prosecutor and the Registry – frequently make public statements, lead delegations to
countries that are States Parties to the ICC Statute, and meet with members of situation
country governments. Especially in the early years of the Court, the officials elected were
generally able to function in both French and English, and they often had skills in other
languages as well. Inaugural President Philippe Kirsch was a bilingual Canadian diplomat.
First Registrar Bruno Cathala was of French nationality and spoke English. He was
succeeded by Silvana Arbia of Italy, who worked mostly in French, although she was also
proficient in English. President Sylvia Fernandez of Argentina spotlighted her
multilingualism during a 2016 annual statement before the United Nations Security Council,
switching from English to French to Spanish, thereby allowing a wide group of audience
members to follow portions of her comments in the original language. During a 2021
ceremony, in which the Trust Fund for Victims presented a single symbolic euro as
reparations for the cultural destruction perpetrated on historic Timbuktu monuments,
Prosecutor Fatou Bensouda of The Gambia, an officially English-speaking country,
addressed the gathered dignitaries in French, Mali’s official language. Bensouda also
regularly made opening statements in French for trials related to crimes in officially French-
speaking countries.
With the passage of time, however, the ICC has apparently become less concerned that its
top officials embody the bilingualism presented to the world as the Court’s working model.
The current generation of leaders (as of August 2022) use English as their working language
– indeed, two of them are UK nationals – and they may not even have stated their intention
to work toward proficiency in French, once considered de rigueur.
23
Other critical ICC
positions have also been filled with persons unable to function in both working languages,
even when it would seem essential to do so. Examples are the head of a field office in a
French-speaking situation country, top legal officer of one of the judicial chambers, and head
of the ICC office responsible for the well-being of both English and French-speaking staff.
24
Such lack of bilingualism among top management of the Court is a point of dismay for
many staff members, particularly those who have French as their first language or whose
23
The Court’s two current vice-presidents, from the Democratic Republic of the Congo and Peru, can work in
French as well as English.
24
Swigart 2020, p 30.
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
9
education and professional life have been largely carried out in that language. It is felt that
having bilingual leadership sends a message about the global character of the Court.
Furthermore, being able to speak directly to stakeholders in Francophone situation countries
is advantageous, stated an interviewee who works in the Court’s Outreach office. Indeed, this
interviewee continued, leaders at the highest levels of the Court should all be bilingual. ‘But
it is not a criterion, and we are lucky if the person speaks the two languages’
25
. The
interviewee added, ‘The French-speaking people make a lot of effort to try to speak English.
All of our local [Outreach] staff have taken training in English. They are really trying. But it
is not always the case the other way. I guess it is also a general issue that when you speak
English, you don’t really have to make efforts to learn other languages’.
26
A top Court official and outspoken advocate for bilingualism in the working languages
believes that there should be more emphasis placed on French language skills when recruiting
new staff, particularly when filling influential positions. In order not to restrict the pool of
possible candidates, the interviewee proposed to the Registrar that persons not proficient in
French upon recruitment should be expected to function at a minimal level – for example be
able to read a French language document – within five years of being hired.
27
‘I think the
word “international” in the International Criminal Court is not only to have people coming
from all over the world and speaking English’, stated the interviewee. ‘Such an international
organization should be proud to have all bilingual managers’.
28
2.3 Does English-language dominance really matter?
Why is the sidelining of French at the ICC a phenomenon worth exploring? Is the
predominant use of a single language by an international institution instead of the more
balanced use of two languages – both of them with a problematic colonial past – even
important in the context of a world where an estimated 6,000 languages are spoken?
29
In
discussing the ‘office culture’ at the Court, which tends to downplay recognition of language
25
Author interview RP-2 (8 June 2017).
26
Ibid.
27
Author interview RD-4 (6 June 2017).
28
Ibid.
29
Figure cited in Tomuschat 2017, p 197.
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
10
diversity as well as language skills more generally,
30
an interviewee from the Office of the
Prosecutor made this observation about people who are disgruntled by French not being on
equal par with English:
People feel undervalued as French speakers, but they don’t even consider – those
same French speakers – don’t even consider the people who don’t speak French
and English as a native language. Right? There are people that are coming from
all over the place that, you know, that don’t speak French or English as a first
language, and they’re speaking, you know, their third, or fourth, or fifth, or sixth
languages. And they’re working in them!
31
I assert, nonetheless, that the dominance of a single language is not a simple matter of
numbers and statistics. Rather, this dominance carries an important symbolic load. For an
institution whose very raison d’être is to bring about accountability for grave crimes
committed across the globe, the apparent nonchalance with which the English language is
allowed to communicate both visually and orally for the ICC sends an undesirable message
to its constituents, who hail from a wide array of nations, language groups and cultures.
3. Practical considerations: what does English-language hegemony mean for day-to-day
activities?
Whether one supports the idea of the Court’s dual working language policy or not, the fact
remains that it is laid out in the ICC Statute and must, in many contexts, be duly enacted.
This requirement creates numerous challenges for the ICC on a daily basis, as a large and
diverse staff carry out complex and interconnected tasks. This section will explore some of
the practical difficulties and inefficiencies arising from the dominance of English within the
institution.
3.1 A mountain of translation
30
Swigart 2020, p 32.
31
Author interview OTP-8 (24 June 2019).
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
11
Since most members of the ICC staff use English as their working language, their outputs are
also drafted in that language. An interviewee estimated, for example, that 90% of trial
judgments and other judicial decisions are originally produced in English
32
and must
subsequently be translated into French, a long and complicated process that entails the labor
of multiple LSS translators and revisers.
33
The same is true for in-house documents of an
official nature, reports, staff memos, and other important communications. As noted above,
la version française is often slow to arrive (or worse), due to enormous translation backlogs
as well as chronic underfunding and understaffing of the Language Services Section.
A former Registry staff member observed that the ICC’s annual language services budget
is small compared to that of many other international criminal tribunals, even those that work
in a small number of languages.
34
In addition to ensuring that documents are available in both
ICC working languages to the extent possible, LSS does translations into and from dozens of
situation languages, and then also handles both field and courtroom interpretation in those
situation languages. ‘The LSS of the ICC is the worst funded language service of any
international organization, I am pretty sure of it’, opined the former employee.
35
A current
LSS staff member echoed this view. ‘Translation, and interpretation for that matter, are very
costly. But you can't compromise quality because of language. And if you don't invest a lot
in language, there's an imbalance that sets in’.
36
The sheer impossibility that the Language Services Section could actually handle all the
translation required by the various units and sections of the Court leads to a lot of ‘informal
translation’ by English/French bilinguals who have not been trained for this specialist
activity. An interviewee from the Outreach Section expressed her dismay at having to
produce her own translations, given the important nature of the information being
communicated and the fact that translation was not part of either her job profile or
qualifications.
37
Several young bilingual interns working on short-term contracts with ICC
defence teams related that translation became one of their primary tasks, as they were called
32
Author interview CL-1 (6 June 2017).
33
Swigart 2019, p 279.
34
Personal communication with former Registry staff member (21 May 2021).
35
Ibid.
36
Author interview RL-13 (8 June 2017).
37
Author interview RP-2 (8 June 2017).
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
12
upon to bridge the gap between English- and French-speaking team members.
38
The Office
of the Prosecutor experiences a different challenge. Because the staff works predominantly
in English, sometimes ‘they are paralyzed and cannot work’ while waiting for the English
translation of a French-language document, observed a language professional in the Office’s
Language Services Unit.
39
A prosecutor from a French-speaking country expressed his
frustration over the inability of his colleagues to read materials in French:
From the legal perspective, we say there are two working languages, and I think
we have to comply with it. But secondly, in terms of efficiency, it will go faster…
And I remember a case where it was all French. The statements had to be
translated into English, because the one leading the case didn't have a clue of
what is in the French documents. Which means that it’s a huge cost and delay.
40
As if ICC translators and interpreters did not already have enough on their plates, they
have now been asked to edit the English language outputs of staff members who do not have
the skills to produce clear and polished prose. Conference interpreters working in
international fora have observed a growing tendency among speakers using English as a
spoken lingua franca ‘to rather grossly misjudge their limited English language skills’.
41
The
same phenomenon appears to exist among those who use English as a written lingua franca,
and it falls upon ICC language professionals to clean up the mess.
3.2 The advantages of having English as a first language
It is undeniable that those whose first language is English constitute a privileged category in
the sphere of international work, given the current status of English as a global lingua franca.
In researching the intra-staff dynamics at a global firm after English was designated the
working language, Neeley found that ‘native English speakers in an organization may
experience a status gain under a lingua franca mandate because of the benefit they reap from
speaking in their native language’.
42
After interviewing both first- and second-language
38
Author interview RD-1 (2 June 2017); author interview RD-2 (7 June 2017).
39
Author interview PL-5 (25 October 2017).
40
Author interview OTP-5 (27 June 2019).
41
Gentile and Albl-Mikasa 2017.
42
Neeley 2013, p 477.
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
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English speakers, the researcher found that the latter spoke about ‘feeling “stupid”,
“diminished”, “reduced”, and “devalued” when communicating and in achieving their work
goals, especially when a level of abstract conversation or nuanced discussion was required’.
43
Roberts writes that in the field of international law, shifts toward English in both the spoken
and written modes ‘have clear distributional effects in terms of whom they privilege’.
44
Tomuschat describes the benefits in more detail:
A state that succeeds in elevating its national language to the status of preferred
means of communication in international relations ensures for itself a massive
advantage. It can make its voice heard without any difficulties of a semantic
nature. What its statesmen and diplomats say is invariably correct from a formal
viewpoint of grammar and style and enjoys therefore generally a greater power
of persuasion. In oral presentations, those agents may achieve a degree of natural
freshness which those who have learned a foreign language later in life will never
attain.
45
ICC staff who are not native English speakers are very aware of the greater effort they
need to expend in order to function professionally in what is the de facto lingua franca of the
Court. A native French-speaking interviewee noted the extra burden of thought and time
associated with composing a simple email or memo in English. And if a mistake is made, she
added, ‘you pass for an idiot’.
46
French speakers may also be frustrated by how few
opportunities they have to use their preferred working language in their daily activities. ‘In a
meeting room, if you have only one English speaker, the whole meeting will be conducted in
English. Because… that's the way it is’.
47
A member of the Prosecutor’s Office described the
language dynamics of an investigative team working in a French-speaking country: ‘The
team is a Francophone team. Everybody working there, they are fluent in French, they do the
statements in French, they interact with everybody in French, it’s very Francophone. Still
43
Ibid, p 484.
44
Roberts 2017, p 260.
45
Tomuschat 2017, p 199.
46
Author interview RL-3 (30 May 2017).
47
Author interview RL-12 (7 June 2017).
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
14
their meetings are in English because there is always one or two persons who don’t speak
French’.
48
English language skills are also advantageous in the recruitment phase, despite the official
pretense that French language skills carry equal value. ‘It is clear that if there are two
candidates for a job at the ICC, the one who speaks only a bit of French will get it over the
one who speaks just a bit of English’.
49
The head of a principal Court section noted that for
many jobs, all applicants must be able to speak English – nobody can rely on French alone.
‘De facto, you cannot be staff of the ICC if your English is totally inexistent’.
50
A member
of the Prosecutor’s Office stated outright, ‘Essentially at this place – in the prosecution
division – if you can't speak English, you can't do your job’.
51
He went on to add that most
senior trial lawyers are native English speakers. And reiterating the notion that first language
knowledge facilitates a career at the ICC, a legal officer observed:
Being able to work in your mother tongue is a huge advantage. It is a huge
privilege that people have… You have an advantage when you don’t need to have
a job interview in a language that is not your own. You will come across more
naturally than someone like me who is essentially expressing himself in a foreign
language… I have a non-native accent; I struggle sometimes to find the right
words. And people interviewing in their native tongue don’t have this’.
52
There are administrative units and sections that do rely on a certain number of staff being
proficient in both English and French. Examples are the Victims Participation and
Reparations Section, which has worked on a number of cases in Francophone Africa, and the
Public Information and Outreach Section, which attempts to abide by the dual language
policy in its official communications. And not surprisingly, the percentage of English/French
bilinguals in the Language Services Section itself is high. But as already mentioned, even
positions that ideally require a knowledge of both working languages – as in the Victims and
Witnesses Section – often end up filled by someone who can only work in English, either
48
Author interview OTP-3 (26 June 2019).
49
Author interview RL-12 (7 June 2017).
50
Author interview RD-4 (6 June 2017).
51
Author interview OTP-9 (19 June 2019).
52
Author interview CL-1 (6 June 2017).
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15
because the applicants do not speak both languages or because linguistic skills are ultimately
valued less than other kinds of expertise.
53
3.3 A dearth of French-speaking judges
Of the eighteen judges who constitute the ICC bench at any given moment – at times the
number has been even higher when individual judges had their terms extended in order to
complete a particular trial – a minority have been French-speaking. In 2022, only an
estimated six judges on the bench were able to work in French, with either native or some
degree of fluency. Like other ICC staff members, however, judges are – at least these days –
essentially unable to function solely in the French language for all their daily activities. If
they are elected on the basis of speaking that working language, they will have to improve
their English language skills rather quickly in order to become fully integrated onto the
bench.
54
Of course, since most of the judges working in English do not have it as their first
language, they may also find it necessary to improve their linguistic skills upon arrival.
There have occasionally been fully French-speaking pre-trial or trial chambers (generally
composed of three persons), which means that these judges can interact outside of the
courtroom in French and will eventually draft their judgments in French. During the actual
hearings of a trial, there is almost always simultaneous interpretation provided for the oral
proceedings into both English and French, (although one of those languages is often being
used already by counsel and witnesses on the floor) so that the official hearing transcripts,
derived from interpretation, are available in both languages.
55
Indeed, maintaining
(relatively) up-to-date transcripts in both working languages is a context in which the Court’s
working language policy is most closely respected.
There has been a longstanding linguistic disconnect over the first twenty years of the
Court’s life in the sense that twelve of the thirty cases pursued to date have pertained to
crimes (allegedly) committed in Francophone countries – five in the Democratic Republic of
53
Swigart 2020, p 30-32.
54
Personal communication, former ICC judge (8 March 2017); personal communication, current ICC judge (9
June 2018); author interview CJ-3 (5 June 2017).
55
Read more about how trial transcripts are created, and the irregular use of interpretation for this purpose, in
Swigart 2019.
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Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
16
the Congo, four in the Central African Republic, one in Côte d’Ivoire, and two in Mali.
56
This
means that much of the evidential material is also in French, and that submissions from
defence teams, in particular, are in French. Many of the trial chambers in these proceedings,
on the other hand, have worked in English. A former Court president observed that it would
be very helpful if judges could at least read French so that they could look at submissions
from the parties without waiting for translation.
57
In 2017, ICC Judge Marc Perrin de
Brichambaut of France, one of the Francophone minority in Chambers but fluent in English
as well, made this pointed remark in a talk delivered to Chinese law students:
…if you allow me a personal note…all the accused are Francophone – while most
of the judges are Anglophone. This is one of the problems of the Court, is that
the only Chamber which works in French is the one I chair on reparations for
Lubanga and Katanga. Every other Chamber works in English, and therefore does
not understand, cannot communicate without interpretation with either the
accused, or most of the time the lawyers of the accused are also Francophone,
another little problem.
58
When it comes to judicial decisions of all kinds – the myriad motions, interlocutory
appeals, and eventually trial judgments, along with separate and dissenting opinions – these
are more often than not written in English and must then be translated into French for defence
counsel (and sometimes into other languages for the benefit of the accused). Proceedings are
thus subject to delay and budgets are stretched thin due to the fact that critical actors are
limited in the languages they read. A Francophone staff person working as a representative
for victims expressed her frustration with this topsy-turvy situation:
I resent the fact that you have so many places where French is the language of
the situation. Of course, it is Swahili or Lingala. But if they do speak a working
language, it would be French. But then everything is done in English because the
three judges are speaking English, and do not speak a word of French. I resent
that for my clients, because then everything is in English, everything I’m writing
56
See https://www.icc-cpi.int/cases.
57
Author interview CJ-4 (8 June 2017).
58
Perrin de Brichambaut 2017.
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Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
17
is in English, and I would have to translate it for them to be able to understand…
But if it is in French, they can try!
59
Another impact of the predominantly English-speaking Chambers is that accused persons
are now making choices about their lead defence counsel differently than in the earlier trials.
Word has apparently gone around the ICC detention centre, reported an interviewee:
‘Because judges are mainly English-speaking, and their decisions are in English, the
tendency now is to take a counsel who speaks English, because they want someone who can
understand everything’.
60
Accused persons from Francophone countries may thus sacrifice
direct communication with their own lead counsel so that their lead counsel can have direct
communication with the judges sitting on the trial. This logic made sense to another
interviewee who works in Chambers, who said he would personally want a lawyer who writes
and speaks in the working language of the judges since some things will inevitably get lost
in translation.
61
He added that this is one reason that bilingual French Canadians are a popular
choice for lead counsel – they can lead an examination of a French-speaking witness in the
courtroom and then pivot quickly to answer a query from a judge in English.
62
3.4 Artificial intelligence to the rescue?
The suggested solution to the lack of English/French bilingualism among Anglophone ICC
staff is rarely the active acquisition of language skills. Indeed, the Court has for many years
offered in-house French language classes with apparently very few takers. Some staff
believe, instead, that what the Court needs is more translators working from French – and
other critical languages like Arabic – into English so that they can access important
information more quickly in the only working language they read. If this is not possible,
certain staff members have suggested that turning to private translation services or even
Google Translate should be permitted.
63
Some interviewees have also expressed exasperation
by the need to rely on interpreters at all, believing that this professional group acts as a
59
Author interview RV-1 (5 June 2017).
60
Author interview RD-4 (6 June 2017).
61
Author interview CL-1 (6 June 2017).
62
Ibid.
63
Author interview OTP-7 (24 June 2019); author interview CJ-6 (22 October 2018).
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18
communication barrier rather than a bridge. Indeed, they would seem to agree with members
of the Nuremberg Tribunal, where simultaneous interpretation was first pioneered, that
interpreters are a ‘necessary evil’.
64
‘That's why they fondly call us “interrupters”
sometimes’, commented an LSS staff member. ‘Not interpreters, but “interrupters”’.
65
A number of interviewees discussed the notion that inter-linguistic challenges might
disappear with the advent of improved artificial intelligence.
66
A prosecutor who believes
that interpreter/witness dynamics can skew the collection of important information in the
field imagined an instruction he would like to give to a witness: ‘Frankly, this person is here
because they haven’t invented a machine yet that can do it. You know. This is not a person
for you to be talking to. This is someone to help me understand what you’re saying and for
you to understand what I’m saying. So, don’t chat’.
67
ICC interpreters have a lot to say about the naïve belief that they could be replaced by
machines anytime soon. ‘I’ve heard about machine technology ever since I left interpreting
school, this dream about the perfect machine which will do much better than interpreters’,
said a courtroom interpreter. ‘But I don't know, I think a machine lacks – maybe intelligence
and emotion?’
68
There is some agreement that artificial intelligence might be used for the
translation of texts, but interpretation of live speech is another matter:
I think the technology has come on a lot. I mean it’s much easier for machines to
work with text because the problem is the recognition. I always think a good
comparison with spoken language is handwriting. If I said to you, ‘translate my
notes’, first of all you would have to recognize what I’ve written. I can barely
recognize it myself some of the time. With spoken language it’s the same thing
– because people have different accents, they speak in different ways, and then
there are non-native speakers.
69
64
Conant 2015.
65
Author interview RL-7 (26 June 2019).
66
Author interview OTP-7 (24 June 2019); author interview CJ-6 (22 October 2018); author interview RL-7
(26 June 2019); author interview RL-19 (26 June 2019); author interview RL-17 (26 June 2019); author
interview RL-18 (25 June 2019); author interview RL-9 (25 June 2019).
67
Author interview OTP-7 (24 June 2019).
68
Author interview RL-19 (26 June 2019).
69
Author interview RL-9 (25 June 2019).
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19
One interviewee brought the dream of dispensing with interpreters altogether back to a
basic misunderstanding of what it means to be multilingual, perhaps reinforced by the hubris
typically found among native English speakers:
I think it’s only in the English-speaking world where people think that machines
will sort all the interpretation and translation issues, or queries or whatever. Only
people who speak one language think that way.
70
The next section will explore in more detail the impacts of both monolingualism and the
monolingual mindset in the ICC’s conceptual sphere.
4. English-language dominance and conceptual limits
4.1 Thinking outside the linguistic box
The ICC website announces among its ‘facts and figures’ that it has 900 staff members
hailing from approximately 100 states.
71
One can easily surmise that almost all of them are
English speakers. While it would be more difficult to estimate how many staff members
principally or only speak English, it is precisely those with this linguistic restriction who have
a proportionally significant impact on the conceptual life of the Court. As already noted,
those who have English as a first language may be largely unaware of the professional
advantages conferred upon them in the ICC’s work environment. They may also, very
significantly, be blind to the ways in which their language shapes the very way they think
and view the world, which in turn affects the Court.
In her provocative book Imprisoned in English: The Hazards of English as a Default
Language,
72
Anna Wierzbicka makes this assertion about the monolingual worldview, one
that largely echoes the observation made by Wilhem von Humboldt (found in this chapter’s
epigraph) published close to 200 years earlier:
The conviction that the words of our native language fit the world as it really is,
is deeply rooted in the thinking of many people, particularly those who have
70
Author interview RL-19 (26 June 2019).
71
https://www.icc-cpi.int/about. Accessed 20 December 2022.
72
Wierzbicka 2014.
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20
never been forced to move, existentially, from one language into another and to
leave the certainties of their home language.
73
Among the interviews conducted for my project on language challenges at the ICC,
numerous comments emerged about the intellectual limits associated with speaking a single
language. All of these comments were made by multilingual interviewees. An LSS translator
working between French and Arabic noted that ‘each language parses the world in its own
way’.
74
A French/English interpreter went farther by suggesting what the ICC loses through
having so many monolingual staff:
It's not only about language – I always say that – it's about expressing the world
in different ways. And if you only have one language, you express it in only one
way. Which is very limited. If you have several languages, you have several ways
of expressing the world, and so to see the world as well. And in an institution like
this one, we need more of that, I think.
75
Roberts notes that ‘it seems reasonable to assume that privileging certain languages results
in privileging both native speakers of those languages, as well as the conceptus, approaches
and sources with which they are familiar’.
76
When the only or predominant language one
speaks is English, the intellectual restrictions seem to be compounded. Indeed, international
law seems generally rife with both practitioners and scholars, working in English, who fail
to recognize what is unavailable to them due to their linguistic blinders. Noting the limitations
of scholars who publish in the very prestigious American Journal of International Law,
Tomuschat writes that ‘many American authors remain deliberately within the cage of the
Anglophone literature without ever looking beyond their own homegrown sources’.
77
He also
notes ‘an almost claustrophobic attitude where the research carried out ends at the boundaries
of the Anglophone communication space’.
78
What is the ultimate effect of such restrictions?
73
Ibid, p 6.
74
Author interview RL-2 (29 May 2017).
75
Author interview RL-3 (30 May 2017).
76
Roberts 2017, p 267.
77
Tomuschat 2017, p 221.
78
Ibid, p 222.
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
21
According to Tomuschat, ‘…linguistic dominance translates easily into intellectual and
political self-insulation, wittingly or unwittingly’.
79
Linguistic insulation and privilege may also be intertwined with race, writes
anthropologist Janet McIntosh, noting that the history of empire and capital has set up Whites
across the globe for language privilege, particularly English speakers. As tourists, they can
almost always count on interacting with local populations and finding public signage in
English. English speakers can readily find overseas employment teaching their first language.
‘Relaxing into this luxury’, McIntosh writes, ‘US Americans and British are among the most
monoglot of peoples’.
80
While White Spaniards might find a parallel (colonially-rooted) ease
when in South America, the Spanish language clearly does not have the same global reach or
ability to confer advantage as English.
The monoglot tendencies of American and British staff at the ICC – and one may add to
this group many Australians, Irish and Anglophone Canadians – do not only express
themselves through their one language but also through their attachment to the common law
system. ‘It is a very multilingual and multicultural court, but English dominates. And there
is also supposed to be a hybrid legal system, but common law is also dominant’, stated an
interpreter.
81
A multilingual legal advisor noted that the English language is the sole
reference point for the common law system. He described how English speakers at the ICC
sometimes have difficulty in appreciating the nuances of legal terms at the ICC, instead
assuming that they already understand their semantic content:
When you have English as your native tongue, there may be a tendency then to
understand certain terms that are used in the [ICC] Statute in their original
meaning, in the States or Canada. Legal terms, like ‘admissibility’. And it is
essentially intellectually challenging to realize, ‘hey, even though this term
means something in my home jurisdiction, it might mean something different at
the ICC’... For someone whose mother tongue is not English, a continental
79
Ibid, p 226.
80
McIntosh 2020.
81
Author interview RL-7 (2 June 2017).
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
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22
lawyer coming from the Roman Germanic system, they already have to take this
first intellectual step.
82
In recent years, there has been pushback by certain judges to the ‘common law drift’
83
that
appears to have occurred at the ICC, despite efforts made at the Rome Conference to create
a sui generis legal system.
84
‘You can feel this on a daily basis in the way they manage their
courtrooms’, said an LSS courtroom interpreter who, like others who work ‘in the booth’, is
a regular observer of what happens during trials. These ‘renegade’ judges, all from civil law
countries, have introduced procedures from their own systems in the trials over which they
preside, for example in the admission of evidence, much to the confusion and consternation
of certain prosecutors and defence counsel who had become accustomed to the common law
approach used in other trials.
85
I have written elsewhere about how the core concepts and documents of the ICC have
been largely framed in English and that they therefore may not map seamlessly onto other
languages.
86
An example is the critical distinction the Court makes between a preliminary
‘examination’ and an ‘investigation’, a difference that is not always possible to convey in a
language without two such semantically related but distinguishable lexical items. It has also
been suggested that the very creation of the ICC, through long debates and negotiations
during the Rome Conference, was shaped by the dominance of English, despite the fact that
common law legal terms were deliberately eschewed in the actual basic texts of the ICC. In
writing about the limited number of non-Western voices present at the Conference, Julie
Fraser notes that ‘the participation of Southern States was subject to the prevailing power
dynamics that were not in their favour. For example, the lack of translation services in Rome
privileged English-speaking delegates…’.
87
In other words, a lack of familiarity with English
may have compounded the relative powerlessness of representatives from certain nations
during the negotiation of the foundational ICC treaty.
82
Author interview CL-1 (6 June 2017).
83
A term used by Colin Picker, as cited in Roberts 2017, p 270.
84
Bensouda 2011.
85
Author interview RL-7 (2 June 2017); personal communication with ICC judge (15 June 2018). In a recent
Women in International Law webinar (‘The Right to a Fair Trial in International Criminal Law’), hosted by
KU Leuven, ICC defence counsel Kate Gibson described how two ICC courtrooms, located physically side by
side, can have trials being conducted according to widely divergent procedures.
86
Swigart 2020, p 32.
87
Fraser 2022.
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
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23
The essential idea here is that English-centrism stacked on top of the common law legal
approach may engender a particularly narrow worldview, one which may nonetheless appear
natural and inevitable to certain persons working at the ICC. Such a limitation is not desirable
for an institution whose cause is purportedly ‘the cause of all humanity’.
88
Those working
with the Court would do well to acknowledge the view expressed by Wierzbicka in
Imprisoned in English – that ‘while English is a language of global significance, it is not a
neutral instrument or one that, unlike other languages, carves nature at its joints; and that if
this not recognized, English can at times become a conceptual prison’.
89
4.2. A multilingual institution with a monolingual ideology
This final section explores, in a speculative manner, a different kind of conceptual limitation,
one that is specific neither to the ICC nor to the English language. It pertains rather to taken-
for-granted assumptions about how language works, what are known in the field of linguistic
anthropology as ‘language ideologies’.
90
A very powerful ideology – often found in the world
of language policy and education – understands multilingualism to be the composite of
distinct monolingualisms,
91
and assumes that multilinguals move from one bounded system
to another, ideally speaking each as if it were their only language.
92
In other words, language
use is judged according to a ‘monoglot standard’.
93
Such an ideology ignores or stigmatizes
the hybrid communicative practices that are so common around the world (where most people
are, in fact, multilingual). In the past often described as ‘code-mixing’ or ‘code-switching’,
the fluid use of more than one language in a communicative event has increasingly been
captured by the term ‘translanguaging’: ‘using resources from different languages together,
with very little regard for what we might call the “boundaries” of named languages…’.
94
The shift in thinking about how many multilinguals use the languages at their disposal has
implications for institutions that must accommodate the speakers of diverse languages.
88
A description of the Court by former United Nations Secretary-General Kofi Annan. https://www.icc-
cpi.int/about.
89
Wierzbicka 2014, p 4.
90
Woolard 2020.
91
Grosjean 1989.
92
Flores and Rosa 2015, p 153.
93
Silverstein 1998.
94
EAL Journal 2016.
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24
Frances Rock describes the dilemma facing those whose professional lives revolve around
multilingual communication:
…whilst interpreters and translators are likely to be familiar with a rich
multilingual tapestry which may run throughout their lives, many of the social
institutions in which they work still view languages as separate and separable
units which come into contact in highly regularised ways and can therefore be
highly regulated whenever they meet. In other words, many social institutions
still operate on the assumption of a monolingual norm even though many social
actors within them do not.
95
How might adopting this different – and many would argue more accurate –
conceptualization of multilingual practice affect the work of the ICC? For one thing, it might
change thinking around the language proficiency tests that are administered to accused
persons so that their need for interpretation and translation can be determined. Requests for
such testing often come from the Office of the Prosecutor, which asserts that accused persons
should be able to understand the materials they disclose in English and/or French and thus
do not need to have them made available in their first language. ‘It's quite a burden for the
Court to translate materials for notice purposes – statements and such – into different
languages’, said a senior trial lawyer. ‘French is easier, English is easier. But when you start
getting into very small and insular languages that aren’t very widely spoken, it becomes quite
problematic’.
96
It goes without saying that the problem is not only one of time but of money.
Defence teams, on the other hand, defend their clients’ right to have the materials in a
language ‘the accused fully understands and speaks’.
97
Proficiency tests may also be ordered
by a trial chamber seeking clarification about the language services an accused person needs
in order to fully comprehend the proceedings against him.
Debate over language proficiency arose, for example, in the case of Alfred Yekatom,
charged with committing crimes in the CAR.
98
As a former leader in the Forces Armées
Centrafricaines and a member of the CAR parliament, it was apparently considered unlikely
95
Rock 2017, p 218.
96
Author interview Office of the Prosecutor-8 (24 June 2019).
97
ICC Statute Article 67.
98
Yekatom’s case has been joined with that of Patrice-Edouard Ngaïssona. https://www.icc-
cpi.int/carII/yekatom-nga%C3%AFssona. Accessed 20 January 2022.
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25
by both the Prosecution and Chambers that Yekatom did not possess sufficient language
skills to follow his own trial in French instead of Sango, the latter being the language which
the accused indicated he spoke fully.
99
In the end, the Pre-trial chamber decided, and then
upheld upon appeal by the Defence, that 1) the accused was proficient in French for the
purpose of Articles 67(1)(a) and (f) of the ICC Statute; 2) the accused has the right to have,
on an ad hoc basis, the assistance of a French-Sango interpreter when reading the witness
statements, if he so wishes; and 3) not all court records/ filings would be translated into
French as a matter of course.
100
The trial chamber in The Prosecutor v. Alfred Yekatom and
Patrice-Edouard Ngaïssona functions primarily in English and most of the decisions
associated with this case on the ICC website are available only in English. Once again, there
is a mismatch between the language of the Chamber and that of the crime situation – the
working language relevant to CAR, the one that could be directly accessed by both the
accused and others with a knowledge of French, has been sidelined.
Certain aspects of the Yekatom proficiency assessment also raise questions about whether
the Court’s monolingual ideology has blinded it to another understanding of the situation. An
insider from the Language Services Section observed confidentially that, based upon
conversations with experts in French and Sango, Yekatom did not appear truly proficient in
either language.
101
The evaluation of Yekatom as ‘semilingual’
102
suggests an unfamiliarity
with a language practice found across Africa, especially in urban areas, where local lingua
francas are used fluidly and often unconsciously in combination with official languages.
103
When a speaker is used to drawing on a broad linguistic repertoire for self-expression, being
asked to confine oneself to a single language for the purposes of assessment may give some
skewed results. It is also quite possible that translanguaging is practiced in contexts usually
considered formal, such as speaking before the Central African Parliament. Believing that
99
Order to Conduct a French Language Proficiency Assessment of Alfred Yekatom, No: ICC-01/14-01/18, 18
December 2018. https://www.icc-cpi.int/CourtRecords/CR2018_06011.PDF. Accessed 20 Janaury 2022. LSS
was, incidentally, already equipped to handle French/Sango interpretation and translation as it was an
important situation language in the Bemba trial.
100
Request on behalf of Mr. Yekatom seeking leave to appeal ‘Decision on Language Proficiency of Alfred
Yekatom for the Purposes of the Proceedings’, No. ICC-01/14-01/18. 16 January 2019. https://www.icc-
cpi.int/CourtRecords/CR2019_00122.PDF. Accessed 20 Janaury 2022.
101
Personal communication former Registry staff member, 15 Feb 2019.
102
Flores and Rosa 2015, p 153.
103
The author’s early scholarly work examined this phenomenon in Dakar with Wolof and French. See
Swigart 1994 and 2001.
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26
Yekatom should speak French at a certain level as a member of parliament, or that he should
speak Sango with a certain purity since it is his first language, reveals powerful assumptions
about the nature of multilingualism and the practices of multilinguals. It reveals that the Court
operates according to an unarticulated monolingual ideology.
104
How the ‘industry’ of translation and interpretation might deal with a different conception
of multilingualism is a tricky question. Simultaneous interpretation, in particular, is
dependent upon technology that assumes that languages are distinct systems that can each
occupy one transmission channel at a time. I once attended a meeting of the African
Commission on Human and Peoples’ Rights, where member state delegations have the
opportunity to defend their human rights records. The Sudanese delegation chose to speak in
Arabic and the interpreters were ready to convey their words into French and English from
their respective booths. The principal Sudanese speaker did not confine himself to Arabic,
however, instead moving between Arabic and English in a natural, intertwined and
unconscious manner. The interpreters repeatedly intervened, asking the speaker to speak
Arabic only, to no avail. His fluid use of translanguaging simply did not fit the technical or
theoretical constructs of simultaneous interpretation, although this personal practice was
clearly so normal that the speaker himself could not prevent it.
Rock acknowledges the difficulties of rethinking the way in which institutions bridge
linguistic difference:
My point is not that interpreting practice should necessarily change to a standby
mode or to a mode driven by translanguaging. It is instead that as interpreters
review their ethical and indeed moral position, consideration of the character of
multilingual talk, as it is currently understood is an important component both
for them and, particularly, for the institutions and individuals who employ
them.
105
104
In more recent decisions relevant to the CAR II case, however, the Court exhibited some nuance in
acknowledging that the accused Mahamat Said Abdel Kani has functional differentiation in his language skills
– he is orally strongest in Sango but can only access written materials in French. Version publique expurgée
de la ‘Réponse de la Défense’ à la ‘Registry Transmission of French and Sango Language Proficiency
Assessments of Mahamat Said Abdel Kani and Report on Feasibility of Translating Written Documents into
Sango’ (ICC-01/14-01/21-78) » (ICC-01/14-01/21-82-Conf). No. ICC-01/14-01/21, 24 May 2021.
https://www.icc-cpi.int/CourtRecords/CR2021_04763.PDF. Accessed 20 Janaury 2022.
105
Rock 2017, p 231.
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As of August 2022, the ICC has three preliminary examinations and seventeen
investigations underway. While its early interventions were confined to the African
continent, its activities have now reached Asia, Europe, the Middle East and Latin America.
Court staff are thus called upon daily to communicate with persons of widely varying
language backgrounds and with complex language practices. The effects of a monolingual
ideology on an institution whose every function depends on the ability to communicate across
diverse languages and cultures cannot be overestimated. In combination with English-
centrism – a powerful ideology of its own – such thinking serves to undermine imagination
and comprehension within the walls of the Court.
I have suggested elsewhere that persons working in international criminal justice, and
judges in particular, ‘should possess the intellectual flexibility to imagine what it means to
see the world in different ways and to express that world through different languages. This
flexibility is cultivated through being pushed outside of one’s native linguistic and cultural
frame, experiencing the resultant disorientation, and reimagining what one assumed to be the
norm as instead one possibility among many’.
106
This advice is even more applicable to
persons working with the ICC, the institution that will carry the ambitious aims of
international criminal justice into the future. Uriburu extends this recommendation further,
to the field of international law, arguing that multilingualism is ‘a means to acknowledge
difference, and to attain openness and self-relativization. These are critical sensibilities in a
discipline that while hardly (or indeed, impossibly) universal has a ubiquitous presence in
our everyday lives’.
107
5. Conclusion
In this paper, I have sketched a linguistic and cultural picture of an institution where English-
language dominance, privilege and conceptual influence are both undeniable and either
passively tolerated or largely ignored. Yet the impacts of this hegemony are palpable in the
ways in which the Court’s everyday work is carried out and its mandate is pursued. Is a
linguistic counter-hegemony possible at this point? If so, what would it look like?
106
Swigart 2017, p 216.
107
Uriburu 2020.
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
28
The second-class status of French is a reality at the ICC, but a question remains about
whether a true ‘duopoly’
108
of the two working languages would significantly open up the
minds of staff members. Despite their historical role in international institutions, French and
English are both European in origin, albeit now widespread due to colonial occupation, and
they are furthermore closely associated respectively with the two most dominant legal
systems of the world, civil (Romano-Germanic) and common law. At the same time, French
is already enshrined in the ICC Statute as a language of the Court and it is spoken in countries
across Africa, a number of which have been sites of alleged international crimes prosecuted
by the Court. It thus has ongoing importance for the Court as both a working and a situation
language.
Perhaps the real question here is what having a truly multilingual institution – expressed
through and reflected by the multilingualism of its staff – would ultimately achieve. It is, of
course, impossible that ICC staff members, including the all-important individuals who
adjudicate cases, could ever have a knowledge of all the relevant languages, societies and
cultures that are relevant to the Court’s cases, originating in increasingly disparate geographic
zones. It is rather the fact of having the intellectual openness associated with multilingualism
that would most benefit the Court. To that end, a number of scholars have suggested that a
satisfactory language policy for international legal institutions would be ‘to abandon French
in favor of a system that requires international lawyers to speak English plus another
language, which would permit a common language but discourage monolingualism’.
109
This
suggestion was echoed by an ICC legal officer, fluent in both French and English in addition
to his first language:
What I think is more important for the Court is, rather than saying we need to
have French on an equal footing … we need to basically nurture language
knowledge, but not necessarily only French knowledge or even primarily French
knowledge, but of different languages so we can basically get different ideas from
them.
110
108
Ibid.
109
Laverack 2015, as cited in Roberts 2017, p 268.
110
Author interview CL-1 (6 June 2017).
Chapter 12 in International Criminal Law: A Counter-Hegemonic Project? 2023. Florian
Jessberger, Leonie Steinl and Kalika Mehta, eds. Springer Press.
29
Uriburu contends that international lawyers from ‘the core’ need, in particular, to have
more exposure to other languages as this ‘directly impacts their engagement with different
ways of thinking and their acknowledgement of others’.
111
This chapter contends that ICC
staff members must be encouraged, indeed required, to step out of what von Humboldt calls
the ‘magic circle’ drawn by a person’s first language, and to question the assumptions created
there. This would seem to be a necessary foundation for carrying out the aims of the ICC
with integrity and fairness.
Increased multilingualism within the walls of the ICC will not, however, lessen the critical
need for professional language services. The Court cannot function properly without
allocating adequate resources in its budget for translation, field and courtroom interpretation,
terminology development, and other critical if too often unacknowledged activities.
112
The
aims of the ICC cannot be achieved if the institution cannot communicate its procedures,
judgments, victims’ benefits, and commitment around judicial complementarity to audiences
across the globe. Despite a growing caseload and expanding geographic reach, the Registry’s
language service budget is being decreased, often due to the pushback of States Parties who
object to the cost of the Court. Those who purport to support the ICC’s mission should recall
the oft-repeated refrain of Judge Claude Jorda, a ‘first generation’ judge of the Court: La
justice a des coûts, mais elle n’a pas de prix.
113
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