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Media appeal for testimonial privilege before U.N. war court

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From the Fall 2002 issue of The News Media & The Law, page 15.

From the Fall 2002 issue of The News Media & The Law, page 15.

By Wendy Tannenbaum

In a case that will set an important precedent for war crimes trials around the world, media organizations are resisting efforts by an international tribunal to transform war correspondents into witnesses.

Two lawyers speaking on behalf of more than 30 news organizations argued Oct. 3 that journalists should not be forced to testify in the United Nations International Criminal Tribunal.

The court heard several hours of argument on whether Jonathan Randal, a former correspondent for The Washington Post, must respond to a subpoena from prosecutors to testify against Radoslav Brdjanin, a former Bosnian Serb officer on trial for war crimes.

First Amendment attorney Floyd Abrams of New York argued on behalf of the news media coalition, which includes The New York Times, the BBC, CNN and The Reporters Committee for Freedom of the Press. Geoffrey Robertson, a London-based attorney, represented Randal, who is now living in Paris and writing books.

The lawyers appeared before the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. The appeal arose from a June decision ordering Randal to testify. The trial chamber gave Randal permission to appeal on June 19, and papers were filed with the AppealsChamber in August.

Neither the accused nor his attorney were at the hearing.

Oral arguments

Judge Claude Jorda, one of five presiding judges, began what he called a “very important hearing” by defining three “core issues.” First, should war correspondents be afforded any kind of immunity or privilege that would protect them from having to testify before the war court? Second, if journalists do get immunity, what are the criteria for its application? And finally, if the court does recognize a privilege for reporters, would it excuse Randal from testifying in the current case?

Robertson, arguing for Randal, urged the tribunal to employ a five-part test each time a war correspondent is subpoenaed to testify. That test would require a journalist to appear in court only where:

  • The testimony sought is of crucial importance;

  • It cannot be obtained anywhere else;

  • It would not require the reporter to breach an agreement with a confidential source;

  • It will not put him in danger;

  • It will not serve as a precedent for forcing other war correspondents to testify.

Robertson emphasized to the Appeals Chamber that the media is “not seeking blanket immunity” from war court subpoenas. He said the adoption of his five-part rule would “serve to avoid unseemly and damaging clashes between the profession of journalism and the fledgling international criminal law system.”

Abrams, arguing for the 34 media signatories, offered a slightly modified version of Robertson’s rule and stressed that adoption of any formulation of the privilege would be better than no rule at all. Abrams told the court his message was simple: “Subpoena journalists last.”

Robertson and Abrams listed numerous hazards associated with forcing journalists to testify at war crimes tribunals.

First, compelling reporters’ testimony would fundamentally impede their ability to access information. Sources would be less open, the media attorneys argued, if they knew the information they provided could be revealed — and possibly used against them — in an international court. Sources are less likely to trust reporters if the media are seen as an arm of the United Nations. The “neutrality, impartiality and independence” of reporters is jeopardized if they can be compelled to provide evidence in court, Abrams argued.

Moreover, war correspondents face serious safety risks if they are forced to testify against powerful war criminals, the media attorneys argued. Journalists in war zones already face significant dangers and requiring them to appear before the tribunal could conceivably make them targets of those against whom they testify.

Both media attorneys reminded the court that its own work of punishing war criminals would be impossible without war journalists.

Robertson suggested to the judges that “this court and the other courts dispensing international criminal justice would most probably not have come into being at all without the work of war correspondents.”

In opposition to the media participants, prosecutor Joanna Korner of Britain argued that reporters are not entitled to special privileges. She compared journalists to members of the Red Cross and the European Union Monitoring Mission, who work in war zones and are not afforded any testimonial immunity.

Korner told the court: “You’re being asked to formulate a legal test, a legal concept, which has enormous difficulties in its application and we would submit is in fact unnecessary and should not from the point of the public interest of other persons in the same position be granted to this particular class of person.”

Significance

Immediately following oral arguments, it was unclear whether the Appeals Chamber would even rule in response to counsels’ arguments because the defense might no longer want Randal’s testimony, making the privilege issue moot. Because the prosecution never needed Randal’s testimony, it seemed the subpoena might be completely withdrawn.

Attorney Joel Kurtzberg, who represented the media parties with Abrams, clarified that the defense has since submitted papers stating that it still wants Randal’s testimony. Kurtzberg said the appeal is “alive and kicking,” and he and the other attorneys do expect a decision as to whether Randal can be forced to testify.

Assuming the court makes a ruling on whether Randal must testify, the decision will be significant. As Robertson pointed out in his arguments, the system of U.N. war courts became a reality only a few years ago. The court’s decision on the issue of reporter’s privilege will guide the young tribunal in all future cases where press freedoms clash with parties’ demands.

“Whatever this tribunal does is likely to have enormous precedential weight in other tribunals around the world as they make their determinations as to what the rule of law should be on this subject,” Abrams argued.

“Whatever the standard applied by this Court is, it will set a precedent, not only in the courts, but also on the battlefield,” the media parties stated in their brief. “It will affect the scope and extent of future conflict-zone reporting and dissemination of critical information to the public, and will undoubtably impact the investigative efforts of countries and prosecutors in uncovering future war crimes and human rights violations.”

Robertson said during oral arguments that punishment for ignoring a court order to testify can be up to seven years imprisonment.

Lawyers do not expect a decision from the Appeals Chamber for several weeks.

Foreign journalists divided

According to Abrams, the media coalition participating in the Randal appeal may be the largest and most internationally diverse group of journalists and news organizations ever to join in a single legal cause. Signatories to the papers filed with the Appeals Chamber come from Nepal, South Africa, Greece, Australia, the United States, Canada, Croatia, Bosnia, Yugoslavia, Macedonia and Sri Lanka.

Yet the world media’s view on the issue of participation in war crimes trials is not entirely united. Some foreign journalists already have willingly testified before the tribunal. In August, BBC reporter Jacky Rowland willingly testified against Slobodan Milosevic about casualties she saw at a Kosovo prison.

Another British reporter, Ed Vulliamy testified in 1997 against Milan Kovacevic, a former concentration camp manager from Bosnia. Vulliamy wrote an editorial for the London-based Observer asserting that reporters are obliged to testify about the war crimes they observe.

“Why should journalists of all people — whose information will be of such value — perch loftily above the due process of law?” Vulliamy asked in the May 2002 article.

The 34 news organizations that signed the friend-of-the-court brief submitted to the court in August argued for “predictable guidelines” — like those in force in many courts in the United States and around the world — that would strike a proper balance between freedom of the press and the needs of criminal justice.