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UN: Hague Court Quashes Subpoena Of Journalist

  • Don Hill

The UN International Criminal Tribunal for the former Yugoslavia has ruled on appeal that reporters may not be subpoenaed routinely to testify in war crimes cases before the court. The ruling came in the genocide trial of Bosnian Serb Radoslav Brdjanin, and excused U.S. reporter Jonathan Randal from being required to testify. RFE/RL reports that the case confronts questions of international jurisprudence and press freedom.

Prague, 12 December 2002 (RFE/RL) -- Former Bosnian Serb Housing Minister Radoslav Brdjanin stands indicted before the UN International Criminal Tribunal for the former Yugoslavia (ICTY) for one of the hardest crimes against humanity to prove -- genocide.

Genocide is hard to prove because one of the elements of proof is intent. It usually is not enough to show that a defendant engaged in forcibly removing from a region members of a selected ethnic group. Nor is it enough usually to prove that the accused caused the deaths of a number of people, or engaged in violent acts to force them to flee. It must be shown that the person intended to cleanse an area of a particular ethnic group or to wipe it out.

In the case of Brdjanin, however, the ICTY's prosecutors believed they had a smoking gun of intent. "The Washington Post" had published an article in 1993 by reporter Jonathan Randal quoting Brdjanin as saying that anyone unwilling to defend Bosnian Serb territory should be moved out to achieve an "ethnically clean space."

Today, however, press-freedom organizations around the world are hailing a decision by the ICTY's appeals chamber dismissing a subpoena that would have forced Randal to testify as to the veracity of his 1993 report.

David Dadge, a spokesperson for the International Press Institute in Vienna, told RFE/RL today that he hopes yesterday's ruling will become a precedent for other courts. "And I think it's interesting that this may well now be picked up as a binding, as a possible, rule for other courts [that] may well follow, possibly at the national level and maybe at the European Court for Human Rights as well."

Randal's lawyers had protested that their client should not be required to testify because he and other war correspondents could be endangered in war zones if it were known that they were potential adverse witnesses in future court trials. Lower ICTY chambers upheld the subpoena but the appeals court quashed it on several grounds.

The trial chamber had ruled in effect that a published article already amounts to a kind of testimony. It said also that since Randal now is retired and living in France he could hardly be endangered by testifying in court.

Attorney Mark Stephens also argued that Randal was resisting a court appearance on behalf of all war correspondents, not only himself. The trial chamber did not agree, but Stephens defended his argument as offering protection to journalists who, unlike Randal, live close to the source of conflict. "If [for example] 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 [the journalist] lives."

The appeals chamber ruling yesterday establishes a two-part test before a war correspondent may be subpoenaed to testify before the ICTY. It must be shown that the testimony "is of direct and important value to determining a core issue in the case." And it must be demonstrated that the evidence cannot reasonably be obtained elsewhere.

One argument presented on Randal's behalf addressed the question of pertinence. This argument noted that the reporter, who does not speak Serbo-Croat, conducted the interview with Brdjanin through an interpreter. Thus any testimony he gave in court about Brdjanin's responses would amount to hearsay, and would therefore not provide pertinent evidence.

The IPI's Dadge spoke to that: "It would seem strange to me that Mr. Randal could give evidence on a subject which he could not have fully understood himself, or could only have understood once the transcript, translation of the discussion had been made."

In its opinion, the appeals chamber held that trial judges could determine the value of such testimony as it was presented.

On another issue, the appeals chamber said that war correspondents deserve limited immunity from testifying because of the special hazards of their profession. Dadge offered one more reason: the special importance of their work. "I think they're serving a far larger purpose, which is bringing information on what's going on back home to people who through voting make decisions on war."

Speaking for the IPI, Dadge said that he welcomed the fact that the appellate judges did not rule out voluntary appearances by journalists. "But there are also other journalists who may well feel that it's their duty to actually testify. And what IPI is very much pleased to see is that journalists who decide themselves to go will still be allowed to do that and journalists who don't want to go will be able to use this as a way of preventing it."

At the ICTY, Florence Hartmann, spokeswoman for the prosecutors' office, referred questions about the appellate ruling to the document itself. She noted, however, that the prosecution retains the option of issuing a new subpoena in the Brdjanin case for reporter Jonathan Randal. It need only meet the newly established test of showing that the information he would provide is directly important and not otherwise readily obtainable.