Translation Error Leads ICTY to Reduce Sentence

by Kevin Jon Heller

A few weeks ago, I discussed the critical role accurate translations play in international trials. A recent decision by the ICTY illustrates the point: largely due to a translation error involving a single word, the Appeals Chamber has reduced the sentence of Momir Nikolic, a security and intelligence officer at Srebrenica, from 27 to 20 years. Nikolic was the first Serb officer to admit to participating in the 1995 Srebenica massacre, the worst civilian massacre in Europe since WW II. He pleaded guilty in 2003 to one count of persecution, avoiding more serious charges of genocide and murder, but was given a harsh sentence by the Trial Chamber because he played a command role in transferring civilians to places where they were executed — executions he later attempted to cover up.

The translation error concerned a statement made by Nikolic’s defense attorney during closing argument. According to the translator, the defense attorney said that “only” 7,000 Muslims had been killed at Srebenica. This seemingly dismissive statement “shocked” the Trial Chamber:

The Trial Chamber has examined the crime of persecutions for which Momir Nikolić has admitted responsibility. The Trial Chamber was shocked to hear the Nikolić Defence state that “only” 7,000 men – “only” Muslim men (as opposed to all non-Serbs) – from “only” one municipality were murdered. The comparison is not helpful to assess the gravity of the offence, and the use of the term “only” in relation to the number of persons murdered is shameful.

In fact, Nikolic’s defense attorney had actually said that the Srenbenica massacre involved “around” 7,000 men — a descriptive statement, not a normative one. That translation error, the Appeals Chamber held, required Nikolic’s sentence to be reduced:

The Appeals Chamber considers that, even though the Trial Chamber directed these words against the Appellant’s counsel, the Trial Chamber must have thought that counsel’s statement was made with the assent of the Appellant as he did not oppose his counsel’s remarks. Moreover, the above statement of the Trial Chamber was made in the chapter of the Sentencing Judgement regarding its findings on the gravity of the offence, which, the Appeals Chamber recalls, is “the most important consideration, which may be regarded as the litmus test for the appropriate sentence”. In light of the position of the statement in the Sentencing Judgement and the harshness of the words used by the Trial Chamber, the Appeals Chamber concludes that the Trial Chamber took this factor into account to the detriment of the Appellant when assessing his sentence. That being so, the Appeals Chamber will take this error into account in revising the Appellant’s sentence.

To its credit, the prosecution agreed with Nikolic about the importance of the mistranslation, telling the judges during the appeals hearing that it was “worth considering,” because it “may have had an influence on the Trial Chamber’s assessment of not only the facts, the admissions, but also the sentence.”

The Appeals Chamber’s decision can be found here.

http://opiniojuris.org/2006/03/09/translation-error-leads-icty-to-reduce-sentence/

Comments are closed.