31 Jan ‘Kadago’ in the Courtroom: Language Disputes in Atrocity Trials
[Rosemary Grey is a Senior Lecturer at Sydney Law School, within the University of Sydney, researching in the field of international criminal law.
Ludmila Stern is a Professor at UNSW in the field of interpreting studies, whose research examines interpreter-mediated communication in complex legal/courtroom settings, including those of war trials in national and international courts.]
Conducting atrocity trials in multiple languages is an extraordinarily complex process. Scholars have examined the intricacies of this process through numerous case studies, including Gaiba’s study on Nuremberg Tribunal, where simultaneous interpretation was pioneered, Takeda’s on the Tokyo Tribunal, Elias-Bursać’s study of ICTY, Fletcher’s on the ICTR, Swigart’s on the ICC, and Killean & Grey’s on the ECCC, to name just a few.
The interpreters who enable this inter-linguistic and inter-cultural dialogue – those who we might glimpse in booths above the courtroom, and many more behind the scenes – have an extraordinarily demanding task. They must comprehend and re-present meaning at rapid speed, and literally become the conduit by which abhorrent crimes are narrated. The cognitive and emotional load, as Constable, Bots and others have shown, is heavy. And perhaps not always visible to the investigators, lawyers and judges with whom they interact.
Nor is the power that interpreters hold. To be sure, they are not the most obvious powerbrokers in the courtroom: few would dispute that the judges have that role. And yet, within the parameters of their professional obligations, interpreters must exercise agency – must flex their ‘individual micro-power’ (p. 96) when making split-second choices about how best to transmit meaning from one language to another.
This is part of what former ICTY interpreter Ellen Elias-Bursać means when she observes ‘translation and interpreting do more than just facilitate the proceedings. They shape them’ (p. xxii). For their job is not one of simply finding ‘matching words’ in the target language: rather, it requires countless decisions, such as how to convey culturally specific expressions and idioms, how to capture the nuances of particular words, and what to do when a lexical equivalent does not exist.
In the expanding literature on translation and interpretation in atrocity trials, one question that remains largely unexplored is: what is (or what are) the best models for a court to resolve disputes over the meaning of legally loaded terms, when the parties to the case disagree? In particular, which models are most consistent with the goal of fair and effective criminal proceedings? In this post, we excerpt one example from our forthcoming article on this question: the ICC’s ‘kadago’ dispute and identify some questions for further research.
The ‘Kadogo’ Dispute
The meaning of Swahili term ‘kadogo’ proved contentious in the ICC’s Ntaganda case, from the situation in the Democratic Republic of Congo. The defendant, Bosco Ntaganda, was a senior commander of an armed group called the Forces Patriotiques pour la Libération du Congo (FPLC). He was charged, among other things, with the recruitment and use of child soldiers (in the language of the Rome Statute: ‘conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities’.)
During the investigation and at trial, numerous witnesses spoke about ‘kadogo’ soldiers in the FPLC. The prosecution argued that ‘kadogo’ meant ‘small or young one’, indicating the presence of ‘young’ soldiers (para. 632) (see evidence cited in trial judgment para. 359). Thus, this testimony about ‘kadogos’ helped to prove the presence of child soldiers in the FPLC’s ranks.
Ntaganda’s preferred interpretation was less incriminating. He told the Court that ‘kadogo’ meant a slim or slight soldier, explaining (interpreted from Swahili):
Well, it is a Swahili word and it means ‘little one,’ or ‘little thing.’ For example, if one sees a thin person you might say, one might say that the person is small, and you wouldn’t necessarily consider the actual age of the person. So ‘kadogo’ means little thing or someone who is small. […] ‘Kidogo’ means someone who is small, and ‘kibonge’ means a more heavier [sic] person. These are terms that we use in the army.p. 35
[…] When people are in a rebellion, these are thin people, because a rebellion is not easy to carry out. They’re not so thin as to run the risk of dying, but they go through difficult periods, they carry heavy loads, they do not sleep well and they engage in battle. You can even lose 60 kilograms. […] That is why we were referred to as kadogos, because we were thin because of the situation at that time.p. 24
When cross-examined, Ntaganda claimed that the Swahili term for ‘child soldier’ was not ‘kadogo’ but ‘mtoto ya jeshi’ (p. 75). At that juncture the presiding judge asked, in English:
Could now the Swahili booth provide us with — I can answer that probably those two words means something, so it’s really ‘child’ and then soldier’, or what? If you could decode this or to – it’s possible to give some –p. 76
Reading the transcript of this exchange, one might imagine that the interpreter was effectively being asked to testify from the booth, but without the ordinary fair trial practices such as swearing in the witness and making them available for cross-examination. But the courtroom participants did not take the judge’s question in that way: the defendant himself answered the judge’s question in Swahili, which the interpreter rendered in English without additional interpreter’s note.
The three trial judges, none of whom spoke Swahili, ultimately accepted the prosecution’s position. They concluded:
In light of the consistent testimony of witnesses to the effect that the term kadogo was used to refer to ‘children’ or very young soldiers, and unconvinced by Mr Ntaganda’s explanations in relation to the use of the term, the Chamber considers this term to refer to the youngest soldiers, by their appearance, including individuals under 15.para. 359; upheld by appeal judgment, para. 778
This language-based dispute has many historical precedents in atrocity trials, where both the meaning of the original term and its interpretation were challenged. Interestingly, courts have not adopted a uniform approach in resolving such disputes.
In the ‘kadogo’ example, the Ntaganda Bench approached this as it would with any disputed fact: it assessed the reliability, consistency and credibility of competing testimony, in light of other evidence on the record. We have seen many similar examples in the ICC and its predecessors.
An example from the ICTY relates to the Bosnian/Serbian/Croatian term ‘asanacija’, which witnesses used in several cases concerning the 1995 Srebrenica massacre (Ch 5). The English translators and interpreters opted for expressions that mirrored the evasiveness of the original term, such as ‘restoration of the terrain’ or ‘hygiene and sanitation measures’ (p. 183). This enabled the parties to explicate the term’s meaning by testing evidence, that is, analysing documents, and calling and cross-examining witnesses at trial.
The prosecution argued that ‘asanacija’, as used in the relevant context, implied burying bodies to hide a mass killing, while the defendants claimed it had the more benign implication of cleaning up terrain after a battle. The judges ultimately found the prosecution’s position more credible. Here, as in the ICC’s kadogo dispute, the language professionals did not formally enter the debate over the appropriate translation of a term, but rather interpreted that debate from the sidelines.
But in some instances, the interpreters and translators have played a greater role in resolving disputes over the meaning of legally-loaded terms. This use of the court or tribunal’s in-house language professionals is a shift from the first international criminal tribunals in Nuremberg and Tokyo after War II, where according to Gaiba and Bowen & Bowen, the judges under-utilised the language professionals as a means of resolving disputes over interpretation and translation at trial.
In some instances, international courts and tribunals have engaged the language professionals through informal channels to resolve disputed interpretations, provoking challenges from the defence as to the fairness of this approach. For example, in the ICTR’s Akayesu case, the trial judges relied upon a French-Kinyarwanda dictionary, and the interpreters’ review of court transcripts, to resolve a dispute as to the correct interpretation of Kinyarwanda euphemisms for rape (paras 152-154; see also appeal judgment, paras 210-214).
Elsewhere, language professionals have been asked to provide input through the established rules of evidence. For instance, in the aforementioned Akayesu trial, the judges also heard an expert witness with specialised knowledge of Kinyarwanda language to help make sense of the ethnic slurs contained in other witness’s testimony (paras 145-151; see also appeal judgment, paras 210-211). As with other expert witnesses, this person’s views were tested through cross-examination.
Another example of calling upon the expertise of language professionals, as formal evidence, can be seen in the ICTY’s Nikolić case. In the sentencing judgment, the Trial Chamber expressed its ‘shock’ at hearing Nikolić’s defence counsel say that ‘only’ 7,000 Muslim men at a particular site had been murdered. The Chamber described that turn of phrase as ‘shameful’, and took it into account when calculating Nikolić’s sentence. On appeal, Nikolić submitted a memo from the Interpretation Unit showing that in fact, counsel had said ‘around 7,000’. The Appeals Chamber took this error into account when rectifying the sentence (pp. 134-135).
Unlike in the previous examples, here the defence challenge related to the accuracy of the English-language interpretation, rather than the meaning of the original term, but it shows another way that language professionals have been involved in resolving language-based disputes.
Questions for Further Research
As this brief survey shows, courts and tribunals have used a variety of methods for resolving disputes over the correct interpretation of legally significant terms. Over time, we have seen a greater use of the expertise of language professionals, particularly the court or tribunal’s in-house interpreters and translators, whose specialist knowledge is indeed a valuable and ready-to-hand resource.
For us, these observations lead to several questions, which our upcoming paper will explore in more depth. Key empirical questions include: how have disputes over interpretation arisen, particularly if the lawyers do not speak the situation language? What role (formal or informal) have language professionals had in resolving these disputes? What rules or guidelines govern these disputes? And in practice, have those rules or guidelines been followed?
Key normative questions include: what are the strengths and drawbacks of the various models for resolving language disputes? Which model best serves fair trial rights? And should the applicable rules or guidelines be reformed?
Input from those at the proverbial coalface of international criminal trials: the language professionals, as well as the lawyers and judges, will be valuable in answering these questions.