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Privatisation: A New Tool to Hamper War Crimes Prosecutions

In international law, war crimes and crimes against humanity, such as torture, are considered so heinous that they fall under universal jurisdiction and can be prosecuted anywhere. Bringing foreign war crimes prosecutions is nonetheless no easy feat. In Britain, foreign acts of torture can be prosecuted under section 134 of the Criminal Justice Act 1988, in application of the state’s obligations under the UN Convention Against Torture.

“No to Torture!” in many languages, London protest, 2012

On this basis, in early 2013, during a visit to the UK while serving as a UN peacekeeper in South Sudan, Nepalese Colonel Kumar Lama was arrested on charges of having tortured two men at an army barracks in 2005 during the decade-long Nepalese Civil War, which ended in 2006. During the conflict between Maoists and the government, around 15,000 people were killed and thousands were tortured, raped and ‘disappeared’. In the decade since, justice has been slow for victims; a Truth and Reconciliation Commission has yet to start its work and there have been no prosecutions for war crimes, although at the end of February 2015, the Nepalese Supreme Court rejected an amnesty for potential war criminals.

The UK supplied arms to the Nepalese government at the height of the conflict, but the charges themselves have nothing to do with it. Indeed, the arrest sparked a diplomatic row, and the British ambassador in Kathmandu was summoned. The Nepalese government has sought to resolve the matter out of court. That did not prevent Lama from going on trial at the Old Bailey in late February.

It is only the second time a prosecution has been brought under this law. The first time, in 2005, an Afghan warlord who had claimed asylum in Britain was given a 20-year sentence; the conviction set an international precedent. The then Director of Public Prosecutions stated “the conviction sent an important message around the world that there was no hiding place in the UK for torturers and hostage takers.”

With Colonel Lama facing a possible maximum sentence of life imprisonment and given the lack of accountability in Nepal for such offences, huge expectations were pinned on this rare trial which was expected to last 6 weeks.

However, on 17 March, Kumar Lama’s case was adjourned until August. Given the ramifications for international relations and law, it might be expected that the adjournment was due to last-minute negotiations and efforts to avoid political embarrassment. The culprit was not diplomacy but sheer incompetency when a Nepalese interpreter failed to attend court.

It is not unreasonable to expect in a case involving offences that allegedly took place in a foreign country involving foreign nationals, the services of an interpreter, especially one qualified to deal with the sensitive nature of war crimes evidence, would be indispensable. With moral pontification by the British authorities concerning the duty to bring this prosecution under international law, surely an interpreter to facilitate proceedings and ensure a fair trial for both parties would not be asking too much.

“No to Torture!” in many languages, London protest, 2012

Qualified interpreters are an essential part of many court proceedings and vital to the administration of justice. According to Ministry of Justice statistics for 2014, an average 700 requests are made by the courts in England and Wales for interpreters every day.

A service provided for both foreign language speakers and the hearing impaired, in line with the UK’s obligations concerning the right to a fair trial under international and common law, until 2012, it was provided largely by independent qualified professional interpreters registered with a regulatory body. In 2011, the service was sold as part of a 5-year framework agreement across the justice sector (police, prisons, probation, etc.) worth £168 million to a small private language service provider. Allegedly unknown to the Ministry of Justice, this small company was bought by Capita, now operating this division as Capita Translation and Interpreting (Capita TI), shortly before the contract went live in 2012.

Immediately boycotted by the vast majority of qualified and experienced court interpreters, following the cut in standards and pay the framework agreement entails, the contractual agreement has never been fulfilled. Adjournments, retrials, and defendants left on remand for days and weeks until an interpreter is found have become common occurrences in the courts.

The situation has been described as a “car crash” and “nothing short of shambolic”. In February, the president of the family division, Sir James Munby, criticised Capita TI and ordered it to pay costs of almost £16,000 after failing to provide a Slovak interpreter on seven occasions in a single adoption case. In 2013, a quadruple murder case involving a Mandarin-speaking defendant was also adjourned when no interpreter attended court.

Almost daily no-shows by Capita interpreters are reported in local newspapers and by lawyers on social media. Unqualified interpreters, who speak the wrong language, fail to appreciate the subtleties of language or the professionalism involved in the task, further complicate complicated legal proceedings in many cases.

The framework agreement has been subject to two major critical parliamentary reports and was singled out by the Public Accounts Committee in 2014 for undermining the “public’s trust in outsourcing.” An independent quality review of the service provided by Capita under the contract, commissioned by the Ministry of Justice in January 2014, found that less than half of the interpreters employed by Capita TI held adequate or acceptable interpreting qualifications.

The Ministry of Justice rejected most of the recommendations and reiterated its support of Capita, which has never performed the actual agreement made, stating “we have seen dramatic improvements over the last two years.” It has also failed to substantiate the cost-effectiveness claims and the reported savings of £27 million it has made.

For its part, Capita, a giant in public service outsourcing, with no prior experience in the languages sector, has since become one of the fastest-growing and largest language service providers in the world. In its own words: “Our Framework Agreement with the Ministry of Justice for the provision of language services makes us one of the largest providers of public sector interpreting services operating in the UK.” With its use of largely unqualified interpreters who do not always turn up, these quantitative claims offer no qualitative assurances of justice to the colonel or the victims in cases such as this.

Capita TI is unaffected by the high financial cost borne by the taxpayer and the damage to confidence in the legal system. The impact on victims, such as in this torture case, who have to prepare themselves to present sensitive evidence more than once is not considered either.

With the focus on profits, the failings have been largely qualitative. Both Capita and the Ministry of Justice have failed to engage with the professional interpreters at the heart of this service. Interpreters interpret far more than words and their qualifications are far greater than the ability to speak more than one language. The trial was not adjourned due to a lack of competent Nepalese-English bilingual speakers in the UK. Coupled with the boycott by professional interpreters, standards have fallen so low under this new system that even when interpreters do attend there is a risk of a miscarriage of justice.

The courts’ part of the framework agreement for justice sector language services is due to be renegotiated at some point this year, with the new contract worth £25 million per year from 2016. The current service provided by Capita is clearly untenable. Interpreters have consistently demanded that the contract is scrapped and the old system reinstated. The Nepal war crimes case is further proof that you cannot privatise justice or sell off parts of the justice system, of which court interpreters are a vital part. The upshot lends a whole new dimension to and could result in further torture impunity.

2 comments on “Privatisation: A New Tool to Hamper War Crimes Prosecutions

  1. Pingback: Privatisation: A New Tool to Hamper War Crimes ...

  2. Pingback: The Wrong Way to Interpret Justice | one small window...

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