International Justice in the News is a monthly e-newsletter about the people involved in the work of international courts and tribunals, significant developments in international justice, and publications and resources of interest. This issue is edited by Leigh Swigart, director of Programs in International Justice and Society.
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Spotlight on Language, Culture and Justice
By Edith Muleiro, The University of Texas at Austin
Language influences our lives in many ways. For some this influence may be subtle, but in a courtroom the ability to understand and be understood becomes the determining factor in one's future.
Imagine standing in a new and unfamiliar country before a judge. A form in English was given to you with the date and address for your hearing. With significant difficulty you were able to translate the information from a language you had never studied or spoken before, knowing that if you did not you would instantly lose your chance at asylum. The language you hear and see around you is further complicated by the legal jargon which is interlaced into all the messaging you receive. A representative of the court hands you a headset by which you will communicate with the interpreter, a figure to the right of the judge. Through this headset you must retell some of your most difficult stories so that they can be communicated through the mouth of an interpreter, a stranger. You speak directly to the judge and they to you but the key to reaching understanding, being granted asylum, and achieving safety sits to their right. You must trust that this interpreter has been trained, that they understand the way trauma can warp your stories and the specific language variety that you use, which is rarely taught in a typical US Spanish-language class.
My undergraduate honors thesis Lost in Translation: Interpretation as a Barrier to Asylum in Texas Immigration Courts, conducted from January to December 2020, focuses on the sociolinguistic experience of actors in immigration court. While some may say the goal of the interpreter is to remain an invisible figure in the courtroom, this actor plays a critical role in immigration law by making sure that the respondent can engage in their hearings. I first noticed the complexities of interpretation when I served as an interpreter myself in legal clinics and detention centers in Texas. These experiences led me to question the ways in which law and language interact in the courtroom, specifically in regard to interpretation. To learn more about the quality, access and impact of interpretation services, I conducted semi-structured interviews with 21 professionals who work in social service and judicial systems related to immigration courts in Texas.
My research focused on six areas: interpreter training, work conditions, pathways for reporting interpretation errors and untrained interpreters, telephonic interpretation, translation of documents and interpretation for detained respondents. Findings from each of these areas highlighted the gaps and oversights within the implementation of the Language Access Plan of the US government.
My thesis includes a broad analysis of this linguistic context, including the limited training provided to interpreters, the lack of translation of documents (such as the notice to appear in court), and specific issues related to interpretation via telephonic lines and video teleconference, among others. This research seeks to shed light on the ways in which the limitations put in place by US government policy and the oversights of its Language Access Plan result in lower interpretation standards and quality, as well as an administrative burden that weighs on those who move through the system, jeopardizing their access to asylum.
This information is critical in achieving a deeper understanding of the needs of interpretation in court for both respondents and interpreters. Interpretation service demands attention. Not only is it frequently used, with 92.39% of hearings conducted in a language other than English, but it is also a critical part of the government's argument that due process is being upheld within the courts (EOIR, 2020). My thesis shows that the current quality of interpretation leaves interpreters, judges, attorneys and respondents unable to carry out their roles in court due to the limited training and lack of resources invested in interpretation. It is my hope that future research will focus more on this topic, specifically on the experience of respondents, whose voices were not included in this study due to COVID-19 research restrictions.
My research is currently in the process of publication. Please feel free to reach out if you have any follow up questions: email@example.com.
Executive Office for Immigration Review, Executive Office for Immigration Review Statistics: Hearing Language, April 15, 2020.
Herd, Pamela, and Donald P. Moynihan. Administrative burden: Policymaking by other means. Russell Sage Foundation, 2019.
U.S. Immigration and Customs Enforcement, "Language Access Plan," U.S. Department of Homeland Security, 2015.
People in the News
Muslim women in Switzerland will no longer be able to wear traditional face coverings, such as the burqa or niqab, in public spaces. So voted the Swiss populace in a recent referendum, which passed by the closest of margins. Such coverings are already banned in various European countries, including Austria, Belgium, Denmark and France. Although the Swiss ban also applies to face coverings worn by others, such as street protesters or football hooligans, the Muslim population feels that their population was targeted in the campaign leading up to the referendum vote. Masks worn for reasons of health and safety in response to the COVID-19 pandemic are exempt from the new regulation. The ban is opposed by Muslim organizations in Switzerland as well as the hotel industry, which welcomes visitors from Arab countries. Read more about the situation in an article from The Guardian.
Venezuelan diplomat Alex Saab continues to be embroiled in a situation involving countries on many continents and both domestic and international courts. According to Sahara Reporters, Saab was arrested at the request of United States authorities – who accuse him of money laundering – in June 2020 while passing through Cape Verde on his way to Iran. The Venezuelan government has protested this action, stating that Saab was a special envoy on a humanitarian mission when detained. In March 2021, the Court of the Economic Community of West African States (ECOWAS) ruled that Saab’s arrest and continued detention in Cape Verde are illegal and that any extradition processes be stopped. The Supreme Court of Cape Verde ordered the following day that Saab be extradited to the US, noting that it does not consider itself bound by the ECOWAS protocol. In the meantime, Switzerland withdrew a three-year-long money laundering probe against Saab, involving a Swiss offshore account, over lack of evidence. Read an Opinio Juris commentary by Moisés Montiel that picks apart Saab’s claim that he should have been covered by diplomatic immunity at the time of his arrest.
Two Arab leaders are currently facing close scrutiny by foreign justice systems.
The organization Reporters Without Borders (RSF) has filed a complaint in a German court against Prince Mohammed bin Salman of Saudi Arabia, accusing him of widespread and systematic persecution of journalists in Saudi Arabia. RSF points to the arbitrary detention of 34 journalists there as well as the 2018 assassination of Washington Post columnist Jamal Khashoggi, the responsibility for which a recently released US intelligence report places squarely on Prince Mohammed. According to an article in The Guardian, RSF hopes its complaint “will lead the German prosecutor to open what is known as a ‘situation analysis’, which could lead to a formal prosecutorial investigation into whether the Saudi officials have committed crimes against humanity by targeting reporters.”
Meanwhile, judges at a special war crimes unit in France’s palace of justice have received a complaint, filed by three human rights organizations, about chemical weapons attacks ordered by Syrian President Bashar al-Assad against his own population. The New York Times reports that this complaint, along with an earlier one lodged in Germany, may finally spur a detailed investigation into the attacks and bring about some accountability for what may well constitute a war crime. “If nothing else, the criminal inquiries in France and Germany could vastly complicate the future for Mr. al-Assad, who has emerged largely victorious in the Syrian war, but with a pariah status that has blocked the international aid necessary to rebuild his country.” Such an investigation would surely please the over 300 signatories of a recent open letter marking ten years since Syria's uprising began. The letter decries pro-Assad support from abroad which takes the form of “dehumanizing propaganda and disinformation with which Syrians are too often smeared in the name of left-wing or ‘anti-imperialist’ politics.”
What is linguistic injustice and how can it be overcome, especially during the COVID-19 pandemic? Applied sociolinguist Ingrid Piller (Macquarie University, Sydney, Australia) laid out her answers to this question in a recent keynote lecture delivered at the 18th International Conference on Minority Languages in Bilbao, Spain. Piller discussed the language challenges created in countries across the globe by the pandemic, noting that it has exposed deep injustices in crisis communication in linguistically diverse societies. Critical information may be inaccessible to minoritized people because it is presented in a language in which they are not proficient, because it is delivered via digital channels in low-technology contexts, or because the written medium has been utilized in low-literacy communities. Piller urges institutions at all levels to design holistic and inclusive communication strategies that meet the needs of linguistically diverse stakeholders. The COVID-19 pandemic constitutes a unique opportunity, she contends, to establish such linguistically inclusive communication policies. Piller’s entire keynote addressed may be viewed on YouTube. A rich archive of writing about COVID-related language challenges can be accessed at the sociolinguistic research platform Language on the Move, edited by Piller.
There have been recent developments at the International Criminal Court (ICC) in the case of The Prosecutor v. Bosco Ntaganda. In 2019, Ntaganda was found guilty of 18 counts of war crimes and crimes against humanity, committed in the Democratic Republic of Congo in 2002-2003. Later that year he was sentenced to a total of 30 years of imprisonment. Both the conviction and the sentence were subsequently appealed. In early March 2021, the Court ordered $30 million in reparations for the victims of his crimes, to be paid through the Trust Fund for Victims since Ntaganda was found to be indigent. In late March 2021, the ICC appeals chamber rejected Ntaganda's appeals in their entirety, upholding conviction on all 18 counts. It also upheld his 30-year sentence.
Developments in International Justice
A recently publicized report, which investigated France’s role in the Rwandan genocide, states that the European country bears “overwhelming responsibilities” for the atrocities that took place in 1994. Commissioned by French President Macron in an effort to normalize relations with Rwanda, the report stops short of saying that France was complicit in the genocide itself, in which an estimated 800,000 Rwandans, mostly of Tutsi ethnicity, were massacred. According to The New York Times, the report notes that the French government had long been allied with the Hutu leaders of Rwanda and considered that country a French-speaking bulwark in the central region of Africa. French authorities thus supported those who sought to suppress the Tutsi resistance based in English-speaking Uganda. “The principal interest of this country for France is that it be francophone,’’ a high-ranking military official wrote in 1990, according to the report, which concluded: “France’s interpretation of the Rwandan situation can be viewed through the prism of defending la Francophonie.”
A ruling in the case of Gawlik v. Liechtenstein at the European Court of Human Rights (ECtHR) has found that freedom of expression does not extend to the circulation of unverified information that impacts negatively on the reputation of a person or institution. The case concerned the dismissal without notice of the applicant, deputy chief physician of the only public hospital in Liechtenstein, after he had voiced suspicions externally, notably by filing a criminal complaint with the Public Prosecutor’s Office, that the chief physician of that hospital had performed active euthanasia on four patients. The applicant had found information showing that the patients had died in the hospital following the administration of morphine, but he neglected to consult other records that would have shown the patients were at the time undergoing palliative care. Judges of the ECtHR did not find a violation of the applicant’s freedom of expression, agreeing with the domestic courts before which the applicant first brought his case that he should have verified the information better, considering the seriousness of the allegations, by cross-referencing with paper medical files. Read more about the case from EULawLive.
In a recent meeting, members of the World Trade Organization (WTO) discussed the temporary waiver of certain obligations under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement in response to the COVID-19 pandemic. The request was co-sponsored by Kenya, Swaziland, Mozambique, Pakistan, Bolivia, Venezuela, Mongolia, Zimbabwe, Egypt, the African Group (negotiating for 43 WTO members), and the Least Developed Countries Group (negotiating for 35 members). The TRIPS waiver would last for a specific number of years, to be agreed by the WTO’s General Council, and until widespread vaccination is in place globally and the majority of the world's population is immune to COVID-19. Members would then review the waiver annually until termination. According to a WTO press release, the organization’s members “indicated a need for further discussions on the waiver request and views exchanged by delegations as these could provide valuable elements for future discussions and may assist governments to prepare for future pandemics.”
Other types of response to the COVID-19 pandemic may be considered less positive. A recent report by the Berlin-based organization Civil Liberties Union for Europe indicates that countries such as Hungary, Poland and Slovenia have used the pandemic to strengthen their hold on power and limit criticism of their governments. The report also warns that similar threats are emerging in countries with strong democratic participation such as France, Germany, Ireland and Sweden. According to a New York Times article, this phenomenon is not restricted to Europe. “Governments across the world have seized extraordinary powers to fight the pandemic, and from South America to Europe and Asia, critics have cautioned that new powers that have little to do with the public health crisis could bear consequences on the rule of law for years to come.” The Guardian also paints a bleak picture, reporting that “civil rights were found to have deteriorated in almost every country in the world during Covid-19.”
Brazil has passed domestic legislation allowing it to accede to the Inter-American Convention Against Racism, Racial Discrimination, and Related Forms of Intolerance. This convention was adopted in 2013 and entered into force in 2017. According to article 1 of the convention, acts of racial discrimination may be based on race, color, lineage, or national or ethnic origin and are defined as any distinction, exclusion, restriction or preference, in any area of public or private life, with the purpose or effect of canceling or restricting the recognition, enjoyment or exercise, under conditions of equality, of one or more human rights and fundamental freedoms enshrined in international instruments applicable to the party states. Of the three dozen members of the Organization of American States, few have ratified the Convention, including Canada and the United States. The latter country continues to experience unrest around issues of racial inequity, which may increase as the trial of the officer involved in the death of George Floyd progresses.
The United Nations recently announced that its Human Rights Council has a new mandate to collect and preserve information and evidence of crimes related to Sri Lanka’s 37-year long civil war, during which the politically dominant Sinhala population clashed with the Tamil minority. This new mandate was spurred, as reported in a UN press release, by the deteriorating human rights situation in the country, which includes the erosion of judicial independence, marginalization of the Tamil ethnic minority, and targeting of dissidents. A group of Tamil diaspora organizations has applauded the UN’s resolution on Sri Lanka, hailing in an open letter the “Tamil and Muslim civil society and political figures in Sri Lanka who have worked hard to draw attention to human rights abuses and atrocity crimes, and advocated strongly for transitional justice for Sri Lanka at the Council…” Scholar Thamil Venthan Ananthavinayagan, in a Justice in Conflict commentary, provides a more critical view of the UN, informed by Third World Approaches to International Law. He asserts the connection of human rights advocacy to neoliberal values and geopolitical state interests, suggesting that the Sinhala elite have used human rights law as a bargaining tool, and that “the Tamil diaspora in the Western countries have instrumentalised the suffering of the war victims for political gain.” Ananthavinayagan concludes that “the human rights corpus has been used by the UN and Western powers as a tool for the furtherance of a neo-colonial agenda, setting the stage for geopolitical influence and neoliberal world order in the Global South.”
Publications and Resources of Interest
“Equitable access to safe and effective COVID-19 vaccines will be the defining global issue of 2021.” This is the opening sentence of a recent commentary by Charles Deutscher in Humanitarian Law and Policy, a blog of the International Committee of the Red Cross. The commentary outlines three important points that countries – especially those experiencing conflict – should consider as they distribute limited vaccines within their own borders. Countries should seek to: 1) Ensure national vaccination plans include everyone – on paper and in practice – and work with impartial humanitarian organizations in vaccination activities when required; 2) Make routine as well as COVID-19 vaccinations parts of a broader strategy that strengthens health systems and responds to communities’ main causes of morbidity and mortality; and 3) Engage communities in planning and implementation to ensure ownership and sustainability. “Among the many differences faced by a child born in a country at peace or one at war is their access to routine, and eventually, COVID-19 vaccines… The present momentum around vaccines presents an opportunity to eliminate this difference by eliminating preventable disease.”
A new open access book by Cambridge University Press, Marketing Global Justice: the Political Economy of International Criminal Law (2021), adopts a novel analytical approach to this sphere of activity. Christine Schwöbel-Patel (University of Warwick) writes in her introduction: “This book is a critical study of the marketing practices adopted to ‘sell’ global justice, and the attendant primacy of market values over social values. Taking note of marketing practices, I suggest, presents a so far under-explored view onto the deeply structuring features of marketing for global justice. Marketing Global Justice, therefore, examines the following questions: In what ways are ideas of global justice (re)defined when they are made marketable? Who benefits and who loses when global justice is marketised? What are the constraints and opportunities of marketised global justice for individuals and organisations that act in the name of global justice? And, what is the political, economic, social, and cultural context of marketing global justice?”
The United Nations Environment Programme (UNEP) recently issued a critically important synthesis report, Making Peace With Nature: A Scientific blueprint to tackle the climate, biodiversity and pollution emergencies. UNEP describes the publication like this: “The report serves to translate the current state of scientific knowledge into crisp, clear and digestible facts-based messages that the world can relate to and follow up on. It first provides an Earth diagnosis of current and projected human-induced environmental change, by putting facts and interlinkages in perspective, including by using smart infographics. In building on this diagnosis, the report identifies the shifts needed to close gaps between current actions and those needed to achieve sustainable development. The analysis is anchored in current economic, social and ecological reality and framed by economics and the 2030 Agenda for Sustainable Development. By synthesizing the latest scientific findings from the global environmental assessments, the report communicates the current status of the world’s urgent issues and opportunities to solve them."
Watch a short video introducing the Making Peace with Nature report.
Stanford University in the United States has been authorized by the International Court of Justice (ICJ) to digitally preserve the records of the war crimes proceedings of the International Military Tribunal at Nuremberg, conducted in 1945 and 1946, and to host them online. These archives were entrusted to the ICJ by a decision of the Tribunal in 1946. In partnership with the Stanford Center for Human Rights and International Justice, Stanford Libraries will develop this collection to provide a unique multimedia research and educational resource for scholars, students, the public, and posterity. The archives will include film, audio recordings, photographs, and all of the massive body of records, transcripts, evidence, minutes of meetings, and other documents. This project is made possible through the support of Taube Philanthropies. Read more in a press release from Stanford University.
The Nuremberg archives will be part of Stanford’s larger Virtual Tribunals Initiative, which seeks to collect materials from both WWII war crimes tribunals and those that came afterward, such as the Special Panel for Serious Crimes in East Timor. There are plans to incorporate additional contemporary tribunal collections in the future.