By Thomas Verfuss in The Hague
thomas.verfuss@jfjustice.net
The French language problem has plagued the International Criminal Court (ICC) for years. Staff members who prefer to speak French have often complained that they feel discriminated against, although French is the language of international diplomacy and the first language of international courts. Even more importantly, francophone journalists are severely handicapped in covering cases concerning their countries that come before the court because of the language problem.
However, although the problem has been acknowledged by the report of the Independent Expert Review (IER) of the International Criminal Court and the Rome Statute system, which was released last year, and by the court itself in its overall response to the report, it appears that the issue risks not being addressed comprehensively.
“Sustained effort should be directed at improving the French language capabilities at the court, through targeted recruitment, French language classes and incentives for staff to improve their French. More generally, when recruiting persons who will be working on a situation country or region, whether in the field or in headquarters, where communication will be predominantly in a particular language, it should be ensured that the individual selected is sufficiently capable in that language to do the job effectively,” the IER report said.
The court’s overall response to the IER report, presented to the Assembly of States Parties (ASP)[i] in April 2021, states: “[…] The Final Report finds that while in some parts of the court French is commonly used, in practice English has become the default working language. According to the experts, this in turn creates a disadvantage in the interaction with situation countries when a significant number are francophone. In order to improve French language capabilities, the experts recommended targeted recruitment, with presence of French speakers on selection panel, more systematic French language classes, and incentives for staff who improve their language skills. […]”
Hopefully, the ASP, which is now preparing for its December session, will put the issue high on its agenda.
It is notable that both reports primarily address the needs of the court’s own staff, and not so much the problems of journalists, who seem to have been forgotten.
Good journalistic coverage of a court case has two components: oral and written. At the ICC, journalists listen to the proceedings in the courtroom, where there is simultaneous interpretation from English into French and vice versa. But they do more than just report about translated witness and expert testimony; they write about exchanges between parties and participants and the judges about written filings, which are usually posted on the ICC website, if they are not confidential. In order to understand these discussions well, a good journalist will read all the documents available beforehand in order to be well informed.
Journalists from anglophone countries have an advantage because practically all documents in the cases concerning their countries are in English. But journalists from francophone countries struggle because most documents concerning their countries are in English, which many of them can’t read.
Many times, African journalists visiting the Hague-based ICC for the first time are in for a shock. They are received orally in the “right language” by essential actors at the court, including officials at the Registry’s Outreach Programme, judges, prosecution, defence, representatives of victims, Office of Public Counsel for the Defence (OPCD), and Office of Public Counsel for Victims (OPCV).
The warm welcome quickly cools for the French-speaking scribes when they are presented with documents written in a language they cannot read. Their English-speaking counterparts do not have such a problem because nobody would dream of distributing to them documents written in French. Ivorian, Malian, and Central African Republic journalists have suffered this fate, being fed documents in English they can’t read. The irony is that the documents written in English have often been prepared by the francophone people who welcomed them in French.
The rationale put forward at the ICC for this phenomenon is that if one judge in the trial chamber can’t work in French, the parties and participants must work in English to accommodate him or her, even if the case is about a francophone country.
An Ivorian journalist once asked an OPCV representative who had welcomed his group in French, but distributed documents in English: “C’est en anglais, je ne peux pas lire ça.” (It’s in English, I can’t read this.) “Il y aura une traduction française, (There will be a French translation),” answered the official. “Quand est-ce qu’elle sera prête? On part après-demain (When will it be ready? We leave the day after tomorrow).”.
The journalist, new to the court, did not know that French translations often do not take just days, but sometimes weeks, months, or even years.
These oversights have had unintended, sometimes negative, consequences for the court. On January 15, 2019, a trial chamber of the ICC decided to acquit former Ivorian president Laurent Gbagbo and his co-accused, Charles Blé Goudé. The majority of the judges also wanted the two set free. But the Appeals Chamber decided to keep them in custody pending further litigation by the prosecution. Stories erupted on social media in Ivory Coast, saying: “The judges have been bribed ̶ they changed their decision so quickly.”
The documents explaining that the two decisions had not been made by the same judges were available only in English, so Ivorian journalists were struggling to explain what had happened. This besmirching of the reputation of the ICC could have been avoided had the key documents been available in French in a timely manner.
Parties and participants to proceedings about francophone countries have a good command of the French language, in certain cases but they work in English in order to accommodate just one judge who does not speak French. The Independent Expert Review report talks about more French classes in general for ICC staff, and particularly for the judges. It would be quite reasonable to expect more effort from the judges, who are relatively well paid, to learn French than a journalist from a poor country like the Central African Republic to learn English.
The Assembly of States Parties (ASP) to the Rome Statute, which elects the ICC judges, should also pay attention to the language problem. One ASP source once told Journalists For Justice: “Electing more judges who can work in French would be fine – but where does one find those bilingual judges?” This implies that a francophone judge elected to the ICC must also speak English. However, anglophone judges are not required to also speak French. How can this inequality be justified if, according to the Rome Statute, French and English have equal positions as working languages of the court?
Discrimination against French has its roots in the first post-Nuremberg contemporaneous international criminal jurisdiction, the International Criminal Tribunal for the former Yugoslavia (ICTY). Nobody took issue with ICTY President Gabrielle Kirk McDonald, a US national, not speaking French. But some people (mainly anglophone) made fun of ICTY President (and later ICC judge) Claude Jorda, a French national, saying: “He would never survive a meeting in English.”
Traditionally, French is the language of international diplomacy. That’s why the Permanent Court of Arbitration (PCA), set up in 1899 in The Hague as the first international jurisdiction, had only French as the working language. It was not until the 1920s that the League of Nations adopted English as a working language for its work in the Geneva headquarters and for its Hague court, the Permanent Court of International Justice (PCIJ), which came to join the PCA at the Peace Palace.
For decades, French continued to enjoy equal footing in international courts. Then the United Nations Security Council set up the ICTY in the 1990s. The US went ahead to “buy” influence by seconding staff there to work pro bono (for free). They would insist that meetings be held in English, even if the majority of participants were francophone, because “we don’t speak French”.
The mentality shift became so entrenched that a few years later some people would feel justified to say that it was “too expensive to translate everything into French”. The fact that if the tradition of working in French, as was the case during the PCA’s early years, had been maintained, there would be no need for translation costs. Few people realise that the problem came with the introduction of English to replace French as the original language of international justice.
THE SOLUTION
It is true that the ASP does not give the ICC enough money to do its work. This means the Office of the Prosecutor (OTP) does not have enough financial means for its investigations, and the Registry does not have enough funds to pay for translations.
It is also a fact that the community of states will not make unlimited means available for translation and interpretation at international courts, especially in this era of added costs due to the Covid-19 pandemic. But there is a lot of wastage in this area, even by the ASP itself. For almost 20 years, there has been simultaneous Russian and Chinese interpretations at the annual ASP sessions in New York or the Hague. As Russia and China are not states parties, there are no delegates listening to the interpretations. Freelance interpreters, who are more expensive than those on the ICC staff, are hired for the annual sessions of more or less a week. Some of the resources thus wasted can be redirected to help solve the problem of French translations at the ICC.
The United Nations Organisation (UNO) has English, French, Arabic, Spanish, Chinese, and Russian as its official languages. When the Organisation for the Prohibition of Chemical Weapons (OPCW) came to the Hague as a new organisation born out of the UN system without being part of it, it adopted the six working languages. Thus diplomats did not have to argue about which official languages to use. Russia and China are members of the OPCW, like most states in the world, and pay for the translations. At the ASP of the ICC, Moscow and Beijing do not pay anything for the Russian and Chinese interpretations.
Those resources should be shifted to providing timely French translations of key documents at crucial moments in cases about francophone countries, like in the Gbagbo ruling.
The ASP can also help by electing more judges who can work in French. The informal discriminatory “bilingualism requirement” that is applied to francophone judgeship candidates, but not their anglophone counterparts, has no legal basis. The Rome Statute only says, in Article 36, 3. (c)[1]: “Every candidate for election to the court shall have an excellent knowledge of and be fluent in at least one of the working languages of the court.” Both English and French are working languages of the court, and either of them should suffice.
Having francophone judges working on cases concerning francophone countries would better serve the interests of justice because it is not just the language that matters; it is a legal culture and a way of thinking that are linked to the language. If all the people working on the case of a francophone suspect think, speak, and work in French, they will understand each other better. And translation costs might be saved.
[1] https://www.icc-cpi.int/Publications/Rome-Statute.pdf
[i] https://asp.icc-cpi.int/iccdocs/asp_docs/ASP20/Overall%20Response%20of%20the%20ICC%20to%20the%20IER%20Final%20Report%20-%20ENG%20-%2014April21.pdf
