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Abstract
The day-to-day practice of international criminal law typically requires that concepts from diverse countries and cultures be communicated in certain languages, often including French and English, the working languages of the International Criminal Court (ICC) and most United Nations (UN) courts. This article explores one challenge associated with this multilingual legal process, namely, the challenge of describing gender identities, including non-binary identities, that have no precise equivalent in English and French. It does so through a case study of Sou Sotheavy, a gender non-conforming person who gave evidence at the UN-backed war crimes tribunal in Cambodia, and by considering past cases in which international criminal courts have made foreign terms intelligible to French and English speakers without being limited by the lexicon of those languages. I conclude that diverse gender identities can and should be expressed in terms from the culture from which they originate, in order to broaden and enrich existing conceptions of gender in international criminal law.
Disclosure Statement
No potential conflict of interest was reported by the author(s).
Notes
1 See Christian Tomuschat, ‘The (Hegemonic?) Role of the English Language’ (2017) 86(2) Nordic Journal of International Law 196.
2 For details of the specific expertise required for courtroom interpretation, with a focus on the International Criminal Court, see Andrew Constable, ‘Effective Communication in Multilingual Judicial Proceedings’ in Elizabeth King and others (eds) Victim Advocacy before the International Criminal Court (Springer 2022) 231.
3 Leigh Swigart, ‘Unseen and Unsung: Language Services at the International Criminal Court and Their Impact on Institutional Legitimacy’ in Freya Baetens (ed.) Legitimacy of Unseen Actors in International Adjudication (Cambridge University Press 2019) 272.
4 With additional consecutive interpretation of spoken languages for which there are no simultaneous interpreters.
5 See Constable, above note 2, for a fuller discussion of the differences between ‘interpretation’, ‘translation’ and ‘transcription’, and the resultant different expectations and challenges for each technique.
6 The International Criminal Court (ICC) Registry and ICC Office of the Prosecutor both have their own interpretation units. In researching this article, my focus was on the Registry (court-wide) interpretation unit.
7 Swigart, above note 3, 276–7; Email from ICC Interpretation Unit to Rosemary Grey, 22 March 2021; Interview with Andrew Constable, Court Interpreter, International Criminal Court (The Hague, 5 July 2022).
8 With thanks to Cameron Davison, a Gadigal language consultant with whom I have worked at the University of Sydney, for this knowledge. See also Bureau of Meteorology, Indigenous Weather Knowledge (online) 2016 <www.bom.gov.au/iwk/calendars/dharawal.shtml> (last accessed 5 July 2022).
9 Interview with Andrew Constable, Court Interpreter, International Criminal Court (The Hague, 5 July 2022).
10 Diana Eades, Sociolinguistics and the Legal Process (Multilingual Matters 2010) 76.
11 Gayatri Chakravorty Spivak, ‘Translation as Culture’ (2010) 6(1) Parallax 13 at 13.
12 See Rosemary Grey and others, ‘Gender-Based Persecution as a Crime against Humanity: The Road ahead’ (2019) 17(5) Journal of International Criminal Justice 957; Lisa Davis, ‘Reimagining Justice for Gender-Based Crimes at the Margins: New Legal Strategies for Prosecuting ISIS Crimes against Women and LGBTIQ Persons’ (2018) 24(3) William & Mary Journal of Race, Gender, and Social Justice 513; Rosemary Grey, ‘Non-Binary People and the Rome Statute: Lecture for Africa Legal Aid’s judicial mentoring program’ (Zoom between Brooklyn and the Hague, May 2022) (on file).
13 Maria Elander, ‘In Spite: Testifying to Sexual and Gender-Based Violence during the Khmer Rouge Period’ in Dianne Otto (ed.) Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018) 110.
14 City University of New York Law School, MADRE and Organization of Women’s Freedom in Iraq, Communication to the ICC Prosecutor Pursuant to Article 15 of the Rome Statute Requesting a Preliminary Examination into the Situation of: Gender-Based Persecution and Torture as Crimes Against Humanity and War Crimes Committed by the Islamic State of Iraq and the Levant (ISIL) in Iraq 8 November 2017 <www.madre.org/sites/default/files/PDFs/CUNY%20MADRE%20OWFI%20Article%2015%20Communication%20Submission%20Gender%20Crimes%20in%20Iraq.pdf> (last accessed 5 July 2022).
15 Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (Decision) (International Criminal Court, Pre-Trial Chamber III, Case No ICC-01/19-27, 14 November 2019) [86].
16 Indeed, even the first international criminal tribunal, the International Military Tribunal in Nuremberg, heard evidence of crimes against homosexual men. See Rosemary Grey, Prosecuting Sexual and Gender-Based Crimes at the International Criminal Court (Cambridge University Press 2019) 96–7.
17 See Dianne Otto, Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018).
18 See Eades, above note 10; Holly Mikkelson, ‘Towards a Redefinition of the Role of the Court Interpreter’ (1998) 3(1) Interpreting 21; Michael S Cooke, ‘Understood by All Concerned? Anglo/Aboriginal Legal Translation’ in Marshall Morris (ed.) Translation and the Law (John Benjamin Publishing 1995) 37.
19 See Ahonaa Roy, ‘Introduction’ in Ahonaa Roy (ed.) Gender, Sexuality, Decolonization: South Asia in the World Perspective (Routledge 2020) 1; Qwo-Li Driskill, Asegi Stories: Cherokee Queer and Two-Spirit Memory (University of Arizona Press 2016); Niko Besnier and Kalissa Alexeyeff (eds), Gender on the Edge: Transgender, Gay, and Other Pacific Islanders (Hong Kong University Press 2014).
20 Roy, above note 19 at 1.
21 Simone de Beauvoir, The Second Sex (Constance Borde and Shiela Malovany-Chevallier trans, Vintage, 2011) 293 [trans of: Le Deuxième Sexe (first published 1949)].
22 Hilary Charlesworth, ‘Feminist Methods in International Law’ (1999) 93(2) American Journal of International Law 379 at 379.
23 This question was the subject of Judith Butler’s 1990 book Gender Trouble, which argued that ‘gender’, referring to the socially constructed categories of ‘masculine’ and ‘feminine’, predates the social practice of classifying people as biologically male, female, or intersex.
24 The definition continues: ‘Gender determines what is expected, allowed and valued in a women or a man in a given context. In most societies there are differences and inequalities between women and men in responsibilities assigned, activities undertaken, access to and control over resources, as well as decision-making opportunities. Gender is part of the broader socio-cultural context. Other important criteria for socio-cultural analysis include class, race, poverty level, ethnic group and age.’ See UN Special Advisor on Gender Issues, Gender Mainstreaming: Strategy for Promoting Gender Equality (online) August 2001 <www.un.org/womenwatch/osagi/pdf/factsheet1.pdf> (last accessed 5 July 2022). This definition has been replicated verbatim (or near verbatim) by other UN agencies including the World Health Organization and UN Women: UN Women, Concepts and Definitions (online) <www.un.org/womenwatch/osagi/conceptsandefinitions.htm> (last accessed 5 July 2022); World Health Organization, Gender and Health (online) <www.who.int/health-topics/gender#tab=tab_1> (last accessed 5 July 2022).
25 From the Latin ‘cis’ meaning ‘on the same side as’.
26 Office of the United Nations High Commissioner for Human Rights, Integrating a Gender Perspective into Human Rights Investigations: Guidance and Practice (online) 1 December 2018 <www.ohchr.org/Documents/Publications/IntegratingGenderPerspective_EN.pdf> (last accessed 5 July 2022) 8.
27 Office of the United Nations High Commissioner for Human Rights, LGBTI Equality: Frequently Asked Questions (online) 2018<www.unfe.org/wp-content/uploads/2018/10/FAQs-English.pdf> (last accessed 5 July 2022).
28 Sarah Williams, Hybrid and Internationalised Criminal Tribunals: Selected Jurisdictional Issues (Hart Publishing 2012), 120–33.
29 See Craig Etcheson, Extraordinary Justice: Law, Politics, and the Khmer Rouge Tribunals (Columbia University Press 2019).
30 Extraordinary Chambers in the Courts of Cambodia, Case 001 (online) <www.eccc.gov.kh/en/case/topic/90> (last accessed 5 July 2022).
31 Extraordinary Chambers in the Courts of Cambodia, Case 002/01 (online) <www.eccc.gov.kh/en/case/topic/1295> (last accessed 5 July 2022).
32 Extraordinary Chambers in the Courts of Cambodia, Case 002/02 (online) <www.eccc.gov.kh/en/case/topic/1298> (last accessed 5 July 2022).
33 Nuon Chea died shortly after this trial judgment, but Khieu Samphan has appealed against his conviction.
34 Extraordinary Chambers in the Courts of Cambodia, Completion Plan: Revision 30 30 September 2021 ≤https://eccc.gov.kh/sites/default/files/ECCC%20Completion%20Plan.rev%2030.final_.%20image.pdf> (last accessed 5 July 2022) 7.
35 Prosecutors v Khieu Samphan (Response) (Extraordinary Chambers in the Court of Cambodia, Case No 002/19-09-2007-ECCC/SC, 4 January 2021) [41].
36 Consistent with the ECCC’s practice, I will use the full name, because Cambodian names do not divide easily into ‘family names’ and ‘given names’.
37 For example, investigator Craig Etcheson recalls that Sou Sotheavy identified three security centres where they were detained that the investigating judges were previously unaware of, whose existence was confirmed by subsequent investigations. Interview with Craig Etcheson (Sydney and Boston via Zoom, 30 December 2020).
38 I endeavoured to make contact with Sou Sotheavy through mutual contacts in order to clarify the correct pronoun, but was unsuccessful.
39 Silke Stuzinsky, ‘First Civil Party Application before the Extraordinary Chambers in the Courts of Cambodia (ECCC) on Gender-Based Violence under the Khmer Rouge Regime’ (Press Statement, 3 September 2008) <www.eccc.gov.kh/sites/default/files/media/PressRelease_1st_civil_party_on_Gender_Based_Violence.pdf> (last accessed 5 July 2022).
40 Trailer for Somewhere under the Rainbow (Directed by Sopheak Sao, Meta House (Phnom Penh), 2019) https://www.youtube.com/watch?v=xB5QCUZhDg0 (last accessed 18 July 2022).
41 Erin Handley, ‘Witnesses Describe Horrors of Forced Marriage at KRT’ Phnom Penh Post (online) 24 August 2016 <www.phnompenhpost.com/national/witnesses-describe-horrors-forced-marriage-krt> (last accessed 5 July 2022); Cristina Maza, ‘Civil Party Holds Firm on Account of Khmer Rouge Marriage’ Phnom Penh Post (online) 25 August 2016 <www.phnompenhpost.com/national/civil-party-holds-firm-account-khmer-rouge-marriage> (last accessed 5 July 2022); Amelia Woodside and Chhay Channyda, ‘LGBT Rights Campaigner Awarded’ Phnom Penh Post (online) 21 February 2014 <www.phnompenhpost.com/7days/lgbt-rights-campaigner-awarded> (last accessed 5 July 2022); Joe Freeman and Chhay Channyda, ‘Civil Parties Put Forced Marriage Back in Spotlight’ Phnom Penh Post (online) 18 February 2013 <www.phnompenhpost.com/national/civil-parties-put-forced-marriage-back-spotlight> (last accessed 5 July 2022).
42 Zélie Pollon and Alan M Thornton, IWitness: Voices from Survivors of the Khmer Rouge (Transcultural Psychological Organization Cambodia 2011) (on file).
43 Elander, above note 13.
44 Unless specified otherwise, the following details of Sou Sotheavy’s life are sourced from their ECCC testimony. See Prosecutors v Khieu Samphan (Hearing) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case File No 002/19-09-2007-ECCC/TC, 27 May 2013) <https://www.eccc.gov.kh/sites/default/files/documents/courtdoc/2013-06-17%2012%3A34/E1_197.1_TR002_20130527_Final_EN_Pub.pdf> (last accessed 17 July 2022) (‘Transcript of the hearing (English), Trial Day 184’); Prosecutors v Khieu Samphan (Hearing) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case File No 002/19-09-2007-ECCC/TC, 23 August 2016) <https://www.eccc.gov.kh/sites/default/files/documents/courtdoc/%5Bdate-in-tz%5D/E1_462.1_TR002_20160823_Final_EN_Pub.pdf> (last accessed 17 July 2022) (‘Transcript of the hearing (English), Trial Day 443’); and Prosecutors v Khieu Samphan (Transcript) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case No 002/19-09-2007-ECCC/TC, 24 August 2016) 4 <https://www.eccc.gov.kh/sites/default/files/documents/courtdoc/2017-01-04%2014%3A41/E1_463.1_TR002_20160824_Final_EN_Pub.pdf> (last accessed 17 July 2022) (‘Transcript of the hearing (English), Trial Day 444’).
45 Sou Sotheavy, Perspectives: Women’s Economic Empowerment and Gender Justice (online) <https://cambodia.oxfam.org/latest/stories/perspectives-sou-sotheavy-trangender-activist> (last accessed 16 July 2022).
46 Transcript of the hearing (English), Trial Day 443, above note 44.
47 Rosemary Grey, ‘Seen and Unseen: Sexual and Gender-Based Crimes in the Khmer Rouge Tribunal’s Case 002/02 Judgment’ (2019) 25(3) Australian Journal of Human Rights 466.
48 Dany Vinh, Vuthisokunna Menh and Rebecca Norris, ‘Research Report on Opinions, Attitudes and Behavior toward the LGBT Population in Cambodia’ (Rainbow Community Kampuchea, December 2015) <www.rockcambodia.org/wp-content/uploads/2020/07/TNS-Research-Report-on-Opinions-Attitudes-and-Behavior-toward-the-LGBT-Population-in-Cambodia.pdf> (last accessed 5 July 2022) 33, 90; Email from translator Chin Channa to Rosemary Grey, 22 October 2020.
49 Vinh, Menh and Norris, above note 48 at 33; Email from translator Chin Channa to Rosemary Grey, 22 October 2020.
50 Vinh, Menh and Norris, above note 48 at 38; Email from translator Chin Channa to Rosemary Grey, 22 October 2020.
51 This word choice is apparently unusual among gender diverse people. More common choices include ‘bong’ (brother/sister), ‘pu’ (uncle), ‘pa’ (father), ‘ta’ (grandfather), ‘chae’ (another word for sister), ‘khloun’ (oneself) and ‘sbian’ (a Khmer adaptation of the English term ‘lesbian’). See Vinh, Menh and Norris, above note 48 at 31–5, 90.
52 Elander, above note 13 at 125. Note Sou Sotheavy’s original response was in Khmer, hence what Elander is quoting here is her interpreter’s rending of Sou Sotheavy’s words.
53 A detailed discussion of this text can be found in the work of Brandais York, who writes: ‘The Chbab Srey was first published as part of a larger set of codes, the New Code – or, chbab thmei – which were meant to formalise guidelines for both men and women. However, in contemporary society the code for men has essentially been forgotten, with the code for women still quoted and referred to today. Indeed, receiving a laminated copy of the Chbab Srey remained a typical landmark event for young women until very recently, with almost all females retaining copies well into adulthood. It has essentially become the unofficial and broadly followed definition of gender roles throughout the country.’ Brandais York, A Marriage of Convenience: Marriage Migration Policy and Cambodia’s Lean into China (PhD Thesis, The University of Melbourne, 2019), 78–82.
54 As with cisgender people, transgender people may have any sexual orientation. They can be attracted to persons of any sex or gender, or they may be asexual, and this may change over the person’s lifetime.
55 Elander, above note 13 at 122 (emphasis added).
56 Susan Stryker, ‘(De)Subjugated Knowledges: An Introduction to Transgender Studies’ in Susan Stryker and Stephen Whittle (eds) The Transgender Studies Reader (Routledge 2006) 1 at 4.
57 As above.
58 Office of the United Nations High Commissioner for Human Rights, Integrating a Gender Perspective into Human Rights Investigations: Guidance and Practice, above note 26 at 8: ‘“Transgender” or “trans” are umbrella terms for people with a wide range of gender identities and expressions who do not identify with the sex they were assigned at birth. A transgender person may identify with different gender identities, including man, woman, transman and transwoman, and with specific terms, including non-binary identities such as hijra, fa’afafine and two-spirit, among other terms.’
59 Secretary of Defence, Memorandum for the President – Subject: Military Service by Transgender Individuals 22 February 2018 ≤https://media.defense.gov/2018/Mar/23/2001894037/-1/-1/0/MILITARY-SERVICE-BY-TRANSGENDER-INDIVIDUALS.PDF> (last accessed 5 July 2022) 1; Donald J Trump, Military Service by Transgender Individuals: Memorandum for the Secretary of Defense [and] the Secretary of Homeland Security 23 March 2018 (online) ≤www.federalregister.gov/documents/2018/03/28/2018-06426/military-service-by-transgender-individuals> accessed 5 July 2022. Note: this executive order was revoked by President Joseph Biden on 25 January 2021.
60 Bostock v Clayton County (US S Ct, No 17–1618, 15 June 2020) slip op 10: ‘take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.’
61 Transgender Persons (Protection of Rights) Act 2019 [Act No 40 of 2019] (India) s 2(k). See also Arpita Phukan Biswas, ‘The Iconography of Hindu(ized) Hijras: Idioms of Hijra Representation in Northern India’ in Ahonaa Roy (ed.) Gender, Sexuality, Decolonization: South Asia in the World Perspective (Routledge 2020) 84; Matthew Stief, ‘The Sexual Orientation and Gender Presentation of Hijra, Kothi, and Panthi in Mumbai, India’ (2017) 46(1) Archives of Sexual Behaviour 73.
62 Driskill, above note 19.
63 Sharyn Graham Davies, Challenging Gender Norms: Five Genders among Bugis in Indonesia (Thompson Wadsworth 2007).
64 Tales of the Waria (Directed by Kathy Huang, 2011).
65 Besnier and Alexeyeff, above note 19.
66 In the ICC, legal professionals will often ask for clarification when they first hear an unfamiliar foreign term used in the English or French interpretation: Interview with Andrew Constable, Court Interpreter, International Criminal Court (The Hague, 5 July 2022).
67 On the importance of giving courtroom interpreters the opportunity to prepare before a hearing, see Constable, above note 2 at 247–9.
68 Peg LeVine, ‘A Contextual Study into the Weddings and Births under the Khmer Rouge: The Ritual Revolution’ (PhD Thesis, Monash University, 2007) 22.
69 See Prosecutors v Khieu Samphan (Judgment) (Extraordinary Chambers in the Courts of Cambodia, Trial Chamber, Case No. 002/19-09-2007/ECCC/TC, 16 November 2018) [342], [388]-[389] <https://goo.gl/Yfe5S5> (last accessed 17 July 2022).
70 For a more detailed discussion of ‘cen’, see Emilio Ovuga and Catherine Abbo, ‘“Orongo” and “Cen” Spirit Possessions: Post-Traumatic Stress Disorder in a Cultural Context – Local Problem, Universal Disorder with Local Solutions in Northern Uganda’ in Colin R Martin, Victor R Preedy and Vinood B Patel (eds) Comprehensive Guide to Post-Traumatic Stress Disorders (Springer 2016) 1637; Adina-Loredana Nistor, Andrew Merrylees and Barbara Holá, ‘Spellbound at the ICC: The Intersection of Spirituality and International Criminal Law’ in Julie Fraser and Brianne McGonigle Leyh (eds) Intersections of Law and Culture at the International Criminal Court (Edward Elgar Publishing 2020) 147.
71 See Prosecutor v Dominic Ongwen (Transcript) (International Criminal Court, Trial Chamber IX, Case No ICC-02/04-01/15-T-243-Red-ENG, 23 September 2019) 13 (line 18) <https://www.icc-cpi.int/sites/default/files/Transcripts/CR2019_05973.PDF> (last accessed 17 July 2022).
72 See Prosecutor v Dominic Ongwen (Transcript) (International Criminal Court, Trial Chamber IX, Case No ICC-02/04-01/15-T-172-Red2-ENG, 2 May 2018) 24 (line 22) to 25 (line 2) <https://www.icc-cpi.int/sites/default/files/Transcripts/CR2019_00489.PDF> (last accessed 17 July 2022).
73 As above at 25 (lines 9-20).
74 Prosecutor v Dominic Ongwen (Transcript) (International Criminal Court, Trial Chamber IX, Case No ICC-02/04-01/15-T-166-ENG, 26 March 2018) 52 (lines 15-25) <https://www.icc-cpi.int/sites/default/files/Transcripts/CR2019_05485.PDF> (last accessed 17 July 2022); Prosecutor v Dominic Ongwen (Transcript) (International Criminal Court, Trial Chamber IX, Case No ICC-02/04-01/15-T-167-ENG, 27 March 2018) 49 (lines 1-13), 64 (lines 2-13) <https://www.icc-cpi.int/sites/default/files/Transcripts/CR2019_05492.PDF> (last accessed 17 July 2022).
75 Prosecutor v Dominic Ongwen (Transcript) (International Criminal Court, Trial Chamber IX, Case No ICC-02/04-01/15-T-250-Red-ENG, 21 November 2019) 62 (line 4) to 70 (line 9) <https://www.icc-cpi.int/sites/default/files/Transcripts/CR2019_07319.PDF> (last accessed 17 July 2022).
76 Prosecutor v Dominic Ongwen (Transcript) (International Criminal Court, Trial Chamber IX, Case No ICC-02/04-01/15-T-176-ENG, 15 May 2018) 25 (line 18) to 25 (line 4) <https://www.icc-cpi.int/sites/default/files/Transcripts/CR2018_02563.PDF> (last accessed 17 July 2022). See also 8 (lines 8-13).
77 Interview with Andrew Constable, Court Interpreter, International Criminal Court (The Hague, 5 July 2022)
78 Email from ICC Interpretation Unit to Rosemary Grey, 22 March 2021.
79 For an analysis of the cultural expertise of court interpreters, see Mikkelson, above note 18.
80 International Criminal Court, ‘Regulations of the Registry’ (2018) reg 65(4): ‘Should the Chamber need to raise questions in relation to terminology or usage, the courtroom officer shall contact the team coordinator’.
81 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 7(3).
82 Grey and others, ‘Gender-Based Persecution as a Crime against Humanity: The Road ahead’, above note 12.
83 International Criminal Court Office of the Prosecutor, Policy Paper on Sexual and Gender-Based Crimes (online) 20 June 2014) <www.icc-cpi.int/sites/default/files/iccdocs/otp/Policy_Paper_on_Sexual_and_Gender-Based_Crimes-20_June_2014-ENG.pdf> (last accessed 5 July 2022) 3.
84 Grey and others, above note 12; Davis, above note 12.
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