Chapter 9
In: Sights, Sounds, and Sensibilities of Atrocity Prosecutions
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Abstract
International criminal trials present layers of cross-linguistic and cross-cultural variations which raise questions over the degree and quality of participants’ linguistic and paralinguistic aptitudes in simultaneous interpretations. The incompleteness of linguistic and socio-cultural equivalence can damage precise determinations of criminal intent since compromised linguistic and paralinguistic intersubjectivity in multicultural and multilingual settings can impact procedural and substantive trial rights and outcomes. In particular, when evidence relates to intentionality, the consequences of inadequate intersubjectivity have the potential to adversely influence the probative value of evidence; these adverse influences, moreover, cannot be procedurally resolved merely through sentence mitigation. If intersubjectivity problems are identified, then the benefit of the doubt must be given to the defendant (in dubio pro reo). Attaining intersubjectivity is not merely desirable but remains essential to good administration of justice. It is intellectually idle to maintain that the search for intersubjectivity is difficult due to lack of resources or that an absence lack of courtroom equivalence cannot conceivably affect viable application of evidentiary standards. Such reasoning results in procedural pragmatism with a potential for undermining fair trial guarantees. Enhanced courtroom linguistic intersubjectivity is therefore needed to produce more precise trial outcomes, greater historical accuracy, and enhanced confidence in the quality of convictions as well as acquittals.