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June 19, 2002 |
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The court’s ruling came in response to a motion filed by lawyers acting for the Washington Post and its former correspondent, Jonathan C. Randal. Prosecutors at the tribunal had issued a subpoena of Randal as part of their case against the Bosnian Serb Radoslav Brdjanin, contending that an article Randal wrote in 1993 on ethnic cleansing in Bosnia was an important piece of evidence that went "directly to the heart" of their case against Brdjanin. Randal sought to block the subpoena, arguing that journalists’ impartiality would be jeopardized if they were forced to testify in such cases. Brdjanin was indicted on December 10, 2001. He was charged with genocide, crimes against humanity, violations of the laws or customs of war, and grave breaches of the 1949 Geneva Conventions on the basis of individual criminal responsibility (Article 7 (1) of the Statute of the Tribunal) and superior criminal responsibility (Article 7 (3)). The indictment alleged that Brdjanin "played a leading role in the establishment of structures for the take-over of power in the Banja Luka region by the Bosnian Serb authorities." An Important Piece of Evidence Randal’s February 11, 1993 article in the Post, "Preserving the Fruits of Ethnic Cleansing," which he reported from Banja Luka, Bosnia, featured an interview with Brdjanin, in which the accused asserted his belief that the "exodus" of non-Serbs should be carried out peacefully, so as to "create an ethnically clean space through voluntary movement." At the time, Brdjanin said that Muslims and Croats "should not be killed, but should be allowed to leave – and good riddance." As a housing administrator, Brdjanin advocated expediting the rather time-consuming and expensive process through which non-Serbs had to go in order to be allowed to leave the region. Specifically, Brdjanin claimed to be preparing laws to expel non-Serbs from government housing to make room for 15,000 Serb refugees and for Serb combatants’ families. Randal quoted Brdjanin as having disagreed with authorities in the neighboring Serbia and the new two-republic Yugoslav state it controlled, who he said paid "too much attention to human rights" in an effort to appease European governments and Western opinion. At the time Brdjanin felt that Serbs no longer needed to "prove anything to Europe," saying that "We are going to defend our frontiers at any cost…and wherever our army boots stand, that’s the situation." While the prosecution is eager to admit Randal’s article as evidence, Brdjanin’s lawyers are similarly anxious to cross-examine Randal. Originally Brdjanin’s lawyers insisted that Randal must be cross-examined because Randal’s interview was conducted through a journalistic interpreter, identified only as "X," who the defense contends was hostile to Brdjanin, and therefore may have misrepresented what Brdjanin really said during the interview. However, the defense has dropped its original contention and is arguing instead that the interview took place several months after the period covered in the indictment and does not adequately reflect the context of that period. Legal Precedent? Randal said he was unwilling to appear before the court because he believed that reporters should enjoy a qualified privilege against testifying in such tribunals. In support of this claim, Randal alluded to the legal safeguards in place for the protection of journalists within international humanitarian law, such as Article 79 of Protocol I to the Geneva Conventions and Article 10 of the European Convention on Human Rights. Randal claimed that, if forced to testify in such cases, "journalists’ independence would be undermined and journalists would have fewer opportunities to conduct interviews with officials with superior authority." He argued that "journalists would as a collective profession be put at risk of greater harm and danger." Countering this, the prosecution team claimed that Randal, who is retired and resides in Paris, was in "no danger." Acting on Randal’s behalf, the leading international lawyer Geoffrey Robertson argued that journalists working in conflict zones should be covered by special rules granting them ‘exemption from testifying’, similar to those covering officials of the Red Cross. Randal and his lawyers noted that qualified journalistic privilege has been recognized in a number of domestic settings – including the United Kingdom and in the United States – as well as in Goodwin v. United Kingdom, a case heard before the European Court for Human Rights. In response to these claims, the tribunal affirmed that it had "a duty to keep itself abreast with developments in the field of international human rights," and recognized that "it would be a step in the wrong direction, a step backward, and a severe blow to the freedom of expression of journalists and the freedom of the media… to accept a standard lower than that upheld in case of Goodwin v. United Kingdom," which it claimed, "certainly sets a standard in the sphere of journalistic privilege for the years to come." However the court found Randal’s situation to be fundamentally different from the domestic and European Court of Human Rights precedents. In Goodwin, for example, protection was offered from disclosing confidential information that was not published, or from disclosing a confidential source, on a basis of freedom of expression. In contrast, Randal has published his findings and has disclosed his sources, and furthermore, he signed an affidavit on August 17, 2001 attesting to his willingness to testify, though noting his preference to let his article stand on its own. Moreover, the tribunal’s ruling asserted that "such qualified privilege as conceded in the Goodwin case is always subject to an over-riding requirement to disclose in the public interest." More broadly, the court said that it found Randal’s arguments "misconceived". "This trial chamber fails to see how the objectivity and independence of journalists can be hampered or endangered by their being called to testify when this is necessary," the ruling reads, "especially in those cases where they have already published their findings…No journalist can expect or claim that once she or he has decided to publish, no one has a right to question their report or question them on it. This is an inescapable truth and consequence of making public one’s findings." Ultimately, the court acknowledged the need for careful consideration of journalists’ testimony on a case by case basis, which would require balancing the competing principles of "freedom of expression as they relate to journalists reporting from combat areas," and the "over-riding principle that the course of justice is not unduly impeded by the withholding of evidence." Washington Post Managing Editor Steve Coll said he was concerned about the long-term effects of the ruling on the practice of journalism in conflict areas: "The last couple of years have made clearer than ever how hard is the work of independent correspondents in combat zones where many combatants are not formally aligned with any government and suspicious of the motives of the media." Coll expressed concern that such combatants will come to view journalists as "instruments of some faraway court of power and deal with them as such." The Washington Post lawyer Eric Lieberman said that the paper filed a request for an immediate appeal on June 14, and asked the tribunal that their request be expedited. If the court accepts the appeal, the case would go to the Appeals Chamber, which consists of seven permanent judges: five from the permanent judges of the ICTY, and two from the 11 permanent judges of the International Criminal Tribunal for Rwanda (ICTR). (These seven judges also constitute the Appeals Chamber of the ICTR.) A decision in the ICTY Appeals Chamber may serve as legal precedent for not only the ICTR’s rules of procedure and evidence, but also for those of other courts of international criminal justice. Professional Ethics and A Responsibility to Humanity Randal’s case has prompted a wider debate among journalists who have reported from war zones. In a May 19, 2002 editorial in The Observer, Ed Vulliamy, a correspondent who also covered the war in Bosnia, questioned whether journalists, even after bearing witness to some of the most horrific crimes against humanity and reporting these incidents to a global audience, have fulfilled their responsibility. Vulliamy, who testified in the 1997 case of Milan Kovacevic, the first man ever to be accused of genocide at an international court, argued that the debate over Randal’s testimony was "not just about ‘the media’ but the effectiveness of bringing future cases against war criminals and tyrants in an era in which the world community is trying to implement international laws of war and human rights." Vulliamy pointed out that the work of journalists has already "had an impact beyond mere reporting" in El Salvador, East Timor, Rwanda, the Balkans, and elsewhere. He argued that journalists now worked in a world "that seeks not only to report the legacy of tyrants and mass murders, but to call them to account." With the launch of the International Criminal Court, Vulliamy argued that journalists must do their "professional duty to our papers and public, and our moral and legal duty to this new legal enterprise," and questioned whether journalists – whose information could potentially be so lucrative to prosecutions – should "perch loftily above the due process of law." The Need for Procedures Others agree that journalists can play a vital role in the battle to identify and prosecute war crimes, but feel that this important task must be protected by institutions like the ICTY. Roy Gutman, Diplomatic Correspondent of Newsweek and President of the Crimes of War Project, said he was concerned by the court’s decision to compel Randal to testify. Gutman argued that such a stance would alienate journalists from the process of reporting and exposing violations of international humanitarian law, which would only cripple the fight against perpetrators. According to Gutman, "If they (ICTY and other courts) think in the long term, they would realize that journalists can serve as an early warning system against the perpetration of war crimes, but the moment they compel journalists to testify, they will discourage them from doing that job. This is especially true for ongoing stories, such as war reportage; a journalist cannot always return to the scene of a war crime after testifying – he or she will appear to perpetrators not as a member of the media, but rather, as an agent of the court." Still, Gutman, who has covered the war in Bosnia, said that the decision to testify remained a personal one. "If a journalist decides to testify on his own, that’s a personal choice, but the court should not compel testimony." Both Gutman and the Wasthington Post’s lawyers feel that there is a painful absence of procedure in regard to journalists’ testimony. Gutman said that "they have carefully formulated procedures on humanitarian organizations such as the Red Cross, but have not even looked into any of the elements of journalistic practice. This is what courts do: they make procedures. To leave it entirely into the hands of the prosecutor is not responsible." He said he hoped that, even if ICTY does not reverse its position on Jonathan Randal’s testimony, both ad hoc tribunals would use this case as an opportunity to reflect seriously on the need for establishing procedures for journalists. There were signs in the court’s decision that this may be taking place. Though the court found that the particular details of Randal’s situation did not reflect the principled argument he was making, it nevertheless prefaced its ruling by acknowledging "the importance that journalists should not be subpoenaed unnecessarily, and that the summoning and the examination of journalists before this and similar courts or tribunals be conducted and regulated in a way which will not unduly hamper, obstruct or otherwise frustrate the vital role of news gathering of the journalist and/or the media." The court explained that it felt obliged to make this statement because it was aware that the issue of journalists’ rights was inevitably going to surface within ICTY or ICTR, but that these issues "have been brought forward in what this Trial Chamber considers the wrong case." Regardless of the outcome of Randal’s case, Gutman said it should serve as a wake-up call for the soon-to-be-operative International Criminal Court, which must also realize the "mighty contribution" that journalists can make, and begin to prepare procedures to protect that role in the future. Related chapters from Crimes of War: What the Public Should Know Journalists,
Protection of Related Links The International Criminal Tribunal for the former Yugoslavia (ICTY) Decision
on Motion to Set Aside Confidential Subpoena to Give Evidence Indictment
of Radoslav Brdjanin An
Obligation to the truth U.N.
Court Orders Reporter To Testify |
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Role of War Correspondents in International Criminal Justice:
ICTY Orders Journalist to Testify