e11th hour...seeking solutionsabout usemail informationquestions? comments?submit an article for publicationregister for our free newslettersite map
disaster responseforeign policymediaregional securityresource directoryarchived articles
search for

recommended sites

recommended resources . post a comment . read comments
global media section entry . main directory

by Rohan Jayasekera, Index on Censorship

8:00 a.m. January 15, 2003 PDT

Following the July 2002 Hague war crimes tribunal ruling, journalists who were professional witnesses to wartime atrocities must now look to their own consciences before deciding whether they should become trial witnesses as well.

ON JULY 7TH, 2002, Jonathan Randal won his court battle for the right to refuse to testify at the Hague war crimes tribunal.

The court's own appeals panel of five judges agreed with his argument that to compel him and other reporters could jeopardize journalists' lives and press freedom and set aside his subpoena.

Randal, an award-winning chronicler of ethnic cleansing during the 1992-95 Bosnian civil war, argued that reporters should only be compelled to testify if their evidence was essential to determining the guilt or innocence of a defendant and the information could not be obtained elsewhere.

"I think it will go down as one in a line of cases that extend press freedom," Randal's British lawyer Geoffrey Robertson told Reuters. Randal had claimed the right to refuse to give evidence in the trial of former Bosnian Serb deputy prime minister Radoslav Brdjanin.

The tribunal originally ruled against Randal in June, arguing that journalistic independence would not be endangered by being questioned on articles that have already been published.

"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 a consequence of making public one's findings," concluded the original judgment.

But this viewpoint was overturned by the appeal panel, who said: "If war correspondents were to be perceived as potential witnesses for the prosecution, two consequences would follow: "First, they may have difficulties in gathering significant information because the interviewed person may talk less freely with them and deny them access to conflict zones.

"Second, war correspondents may shift from being observers of those committing human rights violations to being their targets, thereby putting their own lives at risk."

In an article published in February 1993, Randal quoted Brdjanin, then a Bosnian Serb housing official, as advocating the expulsion of non-Serbs from the Bosnian city of Banja Luka so as to "create an ethnically clean space through voluntary movement". Muslims and Croats, he was quoted as saying, "should not be killed, but should be allowed to leave—and good riddance."

But Randal took down the quotes from a local journalist who translated for him. The prosecutors asked Randal to testify as to their accuracy because the same quotes did not appear in the article written by the local reporter, whose name was kept secret for his own protection.

Randal's stand split journalists who were professional witnesses as journalists to atrocities committed during the Balkans wars, but were now considering the possibility that they could later become trial witnesses as well.

A brief submitted to the court on behalf of 34 organizations including the New York Times, Associated Press, CNN and the BBC, supported Randal's legal defense.

Randal said that through giving evidence, journalists may be perceived as the "prosecutor's tool", undermining their objectivity and neutrality and inflicting great damage on the profession.

The brief quoted the tribunal's first chief prosecutor, Judge Richard Goldstone, who in the foreword to the 1999 book Crimes of War, wrote: "If reporters become identified as would-be witnesses, their safety and future ability to be present at a field of battle will be compromised. In my opinion the law takes too little account of that reality".

The media groups urged the tribunal "to recognize a qualified privilege for journalists not to be compelled to testify about their news gathering before this court unless certain conditions are met—namely that the information is absolutely essential to the case and that it cannot be obtained by any other means."

However Randal and his supporters, notably the International Federation of Journalists argued that even under such rules, journalists would still frequently be prepared to testify voluntarily.

Some journalists already have: the BBC's former Belgrade correspondent, Jacky Rowland, gave evidence at the trial of former Yugoslav President Slobodan Milosevic. The Observer reporter Ed Vulliamy testified against Bosnian Croat general Tihomir Blaskic in May 1998.

Comparing positions in his own paper later, Vulliamy argued that Randal's case—that "the media should be neutral in the sense of being 'above' taking sides, let alone in a court of law—threatened not only the case against Brdjanin, but all the cases heard at the Tribunal.

"I believe there are times in history—as any good Swiss banker will tell you—that neutrality is not neutral but complicit in the crime," he said.

Vulliamy distinguished between "neutrality" and "objectivity." The first, he said, was "moral," the second "fact-specific." But what journalists objectively report need not lead them to "neutral conclusions," he added.

"I just regard it as a duty, and not something to be shirked from," Rowland said after announcing her own decision to testify. "What puts us in some kind of different ethical category from everyone else?"

But Peter Shaw, a former BBC World Service editor and Tim Llewellyn, a former BBC Middle East correspondent who witnessed the 1982 Sabra and Chatila massacres in Beirut, had argued against, saying that journalists should remain "above and beyond" the action at all times.

Writing in a letter to the London Times, they said: "To be seen colluding with authority—any authority—risks credibility, damages hard-won reputations and may even put correspondents' lives in danger... Since when, and why, did the BBC acquiesce to its staff becoming court informants, even if their evidence is limited to eyewitness material?"

The Paris-based media rights group Reporters sans Frontieres (RSF), a long time supporter of the Tribunal process, had nevertheless opposed the subpoena, citing the globally recognized rights of reporters to protect their sources.

But the Tribunal's Chief Prosecutor, Carla Del Ponte, replied in a July letter to RSF that this right did not apply in this case.

She said Randal originally agreed to be interviewed by Tribunal investigators and that the summons to appear was intended only to "confirm the authenticity and exactness of the statements and comments gathered".

US media observers rejected this as legalistic hairsplitting. Columnist Paul Greenberg in the Washington Times snapped: "This isn't so much a subpoena for one reporter as a death warrant for those who will come after. The first rule of war criminals, like the other kind, is: Leave no witnesses."

The tone of the Tribunal's original June ruling also set US media observers' teeth on edge. The original panel of judges claimed that Randal had simply failed to explain how—in his particular case—journalistic safety would be compromised by his testimony.

They also objected strongly to Randal's call for a blanket right to qualified privilege in every case, regardless of their circumstances, even where no confidentiality was expected, as in Randal's interview with Brdjanin.

Both Rowland and Vulliamy argue that the safety issue is irrelevant. "I don't really buy the argument that it makes life more dangerous for journalists," said Rowland. "Life is dangerous for journalists anyway..."

"Some 42 reporters were killed in Bosnia, not by accident," Vulliamy wrote. "What about our colleagues who were murdered at a roadblock in Afghanistan, not to mention the wretched Daniel Pearl (the Wall Street Journal reporter murdered by Islamists in Pakistan)?

"Good reporters put themselves in danger, whether they testify or not."

The difference between the US position and the European is at its starkest among journalists who would theoretically be at most risk—in the Balkans.

The Institute for War & Peace Reporting found that while some recognized the threat that warlords and criminals may attack them if they suspected that they might testify against them in future, most local editors and reporters they interviewed felt this was no justification for refusing to give evidence.

Many top Balkan reporters have already cooperated with investigators. Senad Avdic, editor-in-chief of Slobodna Bosna, told IWPR that, when invited by Hague investigators to clarify some of his reports, he did not hesitate for a moment. "It is a moral and professional duty of reporters to cast light on events," he told IWPR.

Zenun Ccelaj, deputy editor of the Kosovo daily, Zeri, said this was especially so in cases with crimes against humanity and international laws. And in an article for the Sarajevo weekly, Dani, reporter Emir Suljagic wrote that exempting journalists from testifying gives defendants an advantage over the prosecution. <<

Article copyright © Rohan Jayasekera, Index on Censorship; all rights reserved
related resources

| r e a d i n g |

The Media of Conflict: War Reporting and Representations of Ethnic Violence; Tim Allen, Jean Seaton; ISBN: 1856495701

The Rise of the Network Society; Manuel Castells; ISBN: 0631221409

Understanding Media; Marshall McLuhan, Lewis H. Lapman; ISBN: 0262631598

Custodians of Conscience; Theodore Lewis Glasser, James S. Ettema; ISBN: 0231106750

Taken by Storm: The Media, Public Opinion, and U.S. Foreign Policy in the Gulf War (American Politics and Political Economy Series); W. Lance Bennett, David L. Paletz; ISBN: 0226042596

Media Ethics: Cases and Moral Reasoning; Clifford G. Christians, Mark Fackler, Kim Rotzoll, Kathy Brittain McKee; ISBN: 0801333385

The Business of Journalism: Ten Leading Reporters and Editors on the Perils and Pitfalls of the Press; William Serrin; ISBN: 1565845811

The Elements of Journalism: What Newspeople Should Know and the Public Should Expect; Bill Kovach, Tom Rosenstiel; ISBN: 0609607839

Just the Facts: How 'Objectivity' Came to Define American Journalism; David T., Z. Mindich; ISBN: 081475614X

The Media at War: Communication and Conflict in the Twentieth Century; Susan L. Carruthers; ISBN: 0312228015

Hotel Warriors: Covering the Gulf War; John J. Fialka, Peter Braestrup; ISBN: 0943875404

Reporting Vietnam: Media and Military at War; William M. Hammond; ISBN: 0700609113

Secrets of Victory: The Office of Censorship and the American Press and Radio in World War II; Michael S. Sweeney; ISBN: 0807849146

Reporting World War II: American Journalism 1938-1946 (The Library of America); Library of America; ISBN: 1883011124

Reporting Vietnam: American Journalism 1959-1969 (The Library of America); Library of America; ISBN: 1883011582

Witness in Our Time: Working Lives of Documentary Photographers;Ken Light, Kerry Tremain; ISBN: 1560989483

Truth Needs No Ally: Inside Photojournalism; Howard Chapnick; ISBN: 0826209556

. . . . . . . . . . . . . . . . . . . .

Manufacturing Consent: The Political Economy of the Mass Media; Edward S. Herman, Noam Chomsky; ISBN: 0375714499

Necessary Illusions: Thought Control in Democratic Societies; Noam Chomsky; ISBN: 0896083667

Bias: A CBS Insider Exposes How the Media Distort the News; Bernard Goldberg; ISBN: 0895261901

Corporate Media and the Threat to Democracy (Open Media Pamphlet Series); Robert Waterman McChesney; ISBN: 1888363479

Censored 2001: 25 Years of Censored News and the Top Censored Stories of the Year (Censored, 2001); Peter Phillips, Noam Chomsky, Tom Tomorrow ; ISBN: 158322064X

Coloring the News: How Crusading for Diversity Has Corrupted American Journalism; William McGowan; ISBN: 1893554287

The Media Monopoly: With a New Preface on the Internet and Telecommunications Cartels; Benjamin H. Bagdikian; ISBN: 0807061794

Damned Lies and Statistics: Untangling Numbers from the Media, Politicians, and Activists; Joel Best; ISBN: 0520219783

It Ain't Necessarily So: How Media Make and Unmake the Scientific Picture of Reality; David Murray, Joel Schwartz, S. Robert Lichter; ISBN: 0742510956

Conglomerates and the Media; Erik Barnouw, Todd Gitlin; ISBN: 1565844726

You Are Being Lied To: The Disinformation Guide To Media Distortion, Historical Whitewashes & Cultural Myths; Russ Kick; ISBN: 0966410076

| u s e n e tg r o u p s |




| w e b s i t e s |

media watch groups:
Accuracy in Media
Center for Media and Public Affairs
Center for Public Integrity
Committee to Protect Journalists
Fairness & Accuracy In Reporting
First Amendment Cyber-Tribune
Freedom Forum First Amendment Center
Freedom House
IFEX Alert Service
Index on Censorship
Institute for Public Accuracy
Media Awareness Network
Media Research Center
On The Media
PEN American Center

. . . . . . . . . . . . . . . . . . .

alternative news:
The Consortium
In These Times
Le Monde Diplomatique
The Nation
The Progressive

. . . . . . . . . . . . . . . . . . .

mainstream news:
Agence France-Presse (France)
BBC World News (UK)
The Independent (UK)
Los Angeles Times
New York Times
Washington Post
World Press Review

. . . . . . . . . . . . . . . . . . .

media criticism/resources:
American Journalism Review
Columbia Journalism Review
International Forum for Independent Media
Media & Peace Institute
Media Central
Media Channel
NewsLink (AJR affiliate)
Project Censored

. . . . . . . . . . . . . . . . . . .

(*see our resource directory for add'l resources)

privacy policy | editorial policy | disclaimer | terms & conditions
copyright © 2002 e11th-hour.org; all rights reserved.
questions? webmaster | design & development: creative license, ltd