A former correspondent for "The Washington Post" is appealing a subpoena that compels him to testify at the United Nations war crimes tribunal. Jonathan Randal was summoned by The Hague to give testimony against Radoslav Brdjanin, a Bosnian Serb accused of war crimes during the Bosnian war. The Hague prosecution says Randal has evidence that goes to "the heart of the case" against Brdjanin. But Randal's defense lawyers say that compelling journalists to testify at a war crimes court could set a dangerous precedent.
Prague, 16 May 2002 (RFE/RL) -- In February 1993, Jonathan Randal, a "Washington Post" correspondent, traveled to Banja Luka, Bosnia, to report on the forced expulsion of non-Serbs from their homes and lands.
As part of his research, Randal interviewed the Bosnian Serb housing administrator Radoslav Brdjanin, an avowed radical Serb nationalist. Randal quoted Brdjanin as saying the "exodus" of non-Serbs should be carried out so as to create an "ethnically clean space" in Bosnian Serb territory. Brdjanin argued for a peaceful, "voluntary movement" and said Muslims and Croats "should not be killed, but should be allowed to leave -- and good riddance."
Brdjanin and another Bosnian Serb, Momir Talic, are now defending themselves at the United Nations war crimes tribunal against charges related to the persecution and expulsion of more than 100,000 non-Serbs during the Bosnian war. Both defendants have pleaded innocent to 12 counts of war crimes, including genocide.
The prosecution at The Hague-based court has subpoenaed Randal to testify against Brdjanin, saying the journalist -- who is now retired -- has evidence that goes to the "heart of the case."
But on 10 May, Randal appealed his summons at a hearing before the International Criminal Tribunal for the Former Yugoslavia (ICTY), arguing that journalists should not be compelled to give evidence at war crimes trials. Such testimony, he said, would set a dangerous precedent that could compromise the work of reporters.
A decision in Randal's appeal, which is not expected for a few weeks, will influence the role of journalists as witnesses in future war crimes trials and will be especially critical when the International Criminal Court comes into existence this summer.
Randal's defense lawyer, Mark Stephens, told RFE/RL that his client believes journalists should be required to give evidence only when it is "absolutely necessary" to prove guilt or innocence.
"Mr. Randal believes that this is an important point of principle, that journalists should only be given the obligation to give evidence when it is absolutely necessary and when the evidence they've got is compelling testimony that goes to the heart of the case, and [when] it's testimony which can't be gotten from any other source. In this particular case, the evidence can be gotten from a variety of other sources, and it doesn't go to the core or the heart of the charges against Mr. Brdjanin," Stephens said.
Randal and his lawyers are arguing that his evidence amounts to hearsay because Randal relied on a translator during his interview with Brdjanin. Stephens said he believes the prosecution is pursuing the summons only to make an example out of Randal, an internationally respected journalist.
"[The prosecution] started this particular approach, and they don't want to be seen to climb down. They readily acknowledge that there are other people who could give this evidence, and in those circumstances the question one would have is, 'Why on Earth don't they go to those individuals who could give that evidence, who could more credibly give that evidence?' Mr. Randal can only give hearsay evidence. That is, he listened to the interview via a translator," Stephens said.
Stephens said Randal is objecting to his subpoena because he wants to protect other journalists from being required to testify at war crimes trials. Stephens said that compelling journalists to give testimony will make them potential "targets." The dangers are especially worrying, Stephens said, for journalists in countries such as Yugoslavia.
"If a Serbian journalist had had a similar interview with Mr. Brdjanin, and he had said similar things, that journalist still living in Yugoslavia probably would not have the wherewithal to resist the subpoena in the same way Mr. Randal has that luxury. And also that particular journalist would be in personal danger, probably, because of where they live," Stephens said.
But Florence Hartmann, a prosecution spokeswoman for the ICTY, said that being a journalist is, in itself, dangerous. While she acknowledges there are some additional dangers involved in giving testimony at a war crimes trial, she believes that it is a journalist's duty.
"Testifying puts journalists in danger. But testifying, in the first stage, is [the] writing [of] the article. Then, [let's] stop journalism. It's also testifying to write an article. Being a witness of some events is always dangerous. But testifying in court, especially to corroborate what you've already written in the newspaper, doesn't put journalists in danger," Hartmann said.
Further, Hartmann explained that it is necessary for Randal to take the stand if his article is going to be introduced as evidence.
"In our system, you cannot bring as evidence an article without bringing a journalist to corroborate the article, saying in front of the court that the article was written in this condition, that a journalist was present at this meeting, that the accused said to him directly what is written in the article. It's a way to corroborate or to authenticate a written document," Hartmann said.
David Badge is analyst at the International Press Institute, a media-rights organization based in Vienna. Badge said that by forcing Randal to testify, the ICTY could weaken the "privileged position" journalists enjoy as impartial observers to events.
"[Journalists] could be seen to be partial, and once that's perceived, they could lose their objectivity and balance. But even more importantly, journalists are put in a dangerous position from time to time, and this may mean when questioning people who come, say, from a criminal background [that] their lives may be at risk. It's also important to realize that the public needs information like this, and if journalists are perceived to be handing over this confidential information, they may not to be able to get this [type of] information again," Badge said.
Badge also believes that requiring journalists to testify takes the onus off prosecutors in collecting the necessary evidence against war crimes suspects.
"I would find it disturbing if this set a precedent for the appearance of journalists to once again carry out the work of what I think is the duty and the role of the prosecutor's office and very much the administration of justice in general," Badge said.
Defense lawyer Stephens said the ICTY must take into account the future of international law and its impact on journalism when it rules on Randal's appeal. He said that if The Hague wins its battle to force Randal to testify, it will fundamentally impair the ability of reporters to gather information. Journalists, he fears, could be seen as the investigative arm of a judicial system or government and not as impartial observers.