How relying on Russian translations of international treaties creates problems for Ukraine
Lawyers are often disliked for their excessive attention to detail, but every word truly needs to be justified and carefully considered in international documents.
There are already several examples in Ukrainian legislature where the translation of international treaties have errors that distort their meaning.
Moreover, Ukraine has ratified a flawed translation of the Rome Statute.
Read more about the translation of international documents in Ukraine and the issues that such translations can create in the article by lawyer Anna Vyshniakova, head of the NGO "LingvaLexa" and lawyer, and simultaneous interpreter Andrii Biesiedin – The Rome Statute with a Russian accent: How Ukraine ratifies treaties with translation errors.
The issue of translating international legal acts into Ukrainian has become increasingly relevant in Ukraine since 2014.
But significant steps to address this problem have yet to be taken.
It's strange when Ukraine is convincing the world that Russia is violating the Convention on the Prevention and Punishment of the Crime of Genocide, while not having an official Ukrainian translation of this convention.
Moreover, many documents ratified by our state (especially those ratified by Soviet Ukraine) still do not have official Ukrainian translations.
This is not just some made up problem, but a substantive one, as poor translation or terminological inconsistencies can lead to problems in law enforcement and in proving Russian crimes at the international level. Eventually, our NGO "LingvaLexa" created and provided the state with a translation of the aforementioned convention, but it took an entire year just to approve this translation as official.
Some might say, "So what's the problem? If Soviet Ukraine ratified this document in Russian, just translate it into Ukrainian and publish the translation."
But we discovered several discrepancies while translating the document. One key difference is the name of an important term that is designated in different languages as "incitement" (English), "incitation" (French), "instigación" (Spanish) and "подстрекательство" (Russian).
It was translated into Ukrainian as "підбурювання," which is incorrect.
Ukrainian criminal law distinguishes between two different crimes: direct and public incitement to genocide and instigation to genocide.
The key difference is that to prove the crime of instigation to genocide, it is necessary to legally establish the genocide itself.
In contrast, incitement to genocide is an inchoate offence and can be proven without the legal establishment of genocide as such. Work on this in Ukraine is already underway. Several key Russian propagandists have been charged with this crime.
Before the official translation of the Genocide Convention was approved and published on the website of Ukraine's parliament, unofficial versions circulated online using the term "підбурювання," which likely stemmed from the Russian version of the treaty.
Unfortunately, this mistake has had consequences.
Ukraine has decided to officially join the International Criminal Court (ICC), meaning it will ratify the ICC Rome Statute.
However, the official translation of the Rome Statute (which was completed back in 2002 and is now submitted by the president for ratification and ratified by parliament) also refers to incitement to genocide as "підбурювання."
A similar issue occurred with the International Criminal Tribunal for Rwanda, where "instigation" and "incitement" to genocide have been designated by the same term "l’incitation" and that lead to terrible confusion in cases related to calls for genocide.
Unfortunately, current legislation does not provide mechanisms for editing or re-translating existing official/ratified translations.