WHEN JUDGE PATRICIA M. WALD says “international
judges operate in a different milieu” than American courts,
she speaks from experience. Judge Wald, who was a jurist on
the International Criminal Tribunal for the former Yugoslavia,
pinpointed those differences during the OWEN J. ROBERTS
MEMORIAL LECTURE last March.
The most critical difference is the “profound” language barrier,
said Judge Wald, the former Chief Judge of the U.S. Court
of Appeals for the District of Columbia Circuit. Recounting her
two years on the Tribunal, Judge Wald said she sometimes had
a hard time evaluating the credibility of witnesses, even though
their testimony was translated from Serb-Croat into English.
She also said the presiding judge spoke French, which complicated
deliberations, and it was often tough to fathom the briefs
submitted by defense counsel from Balkan countries.
“The crackling give-and-take of cross-examination as we
know it in the American courtroom was impossible,” said Judge
Wald, who added that the language impediments forced judges
“to work overtime even to understand the argument.”
And by Judge Wald’s account, the challenges did not stop
there. Linguistic and cultural differences persist in sentencing.
The death penalty has been abolished in the former Yugoslavia,
she said, but judges receive little guidance beyond that limitation.
“I am no fan of our federal sentencing guidelines, but I
do think some form of presumptive range for certain categories
of crimes would give a more uniform face to the process,” said