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FREE TO BEAR WITNESS...OR NOT
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
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