U.N. war tribunal’s ruling leaves reporters vulnerable to subpoenas

From the Summer 2002 issue of The News Media & The Law, page 11.

By Monica Dias

When a United Nations war-crimes tribunal subpoenaed an American journalist to testify about his interview with a former Serbian official, the journalist balked.

When the tribunal asked a journalist for a British newspaper to testify against another suspect accused of genocide in the Bosnian war, the journalist gladly complied.

The different reactions illustrate a culture clash between U.S. journalists and some of their counterparts in Britain and Europe that may not bode well for American news reporters as a new “super court,” the International Criminal Court, opens its doors to hear future cases of war crimes.

On June 7, the International Criminal Tribunal for the former Yugoslavia ordered former Washington Post reporter Jonathan C. Randal to testify in the trial of Radoslav Brdjanin, a former Serb nationalist charged with genocide and the deportation of non-Serbs during the 1992-95 war in Bosnia. (Prosecutor v. Brdjanin)

Randal, who lives in Paris, is appealing the order. The Reporters Committee for Freedom of the Press and other media groups are supporting his appeal with a friend-of-the-court brief to the tribunal’s appeals chamber.

Foreign correspondents are watching the case closely, fearing that the ruling — if allowed to stand — will mean that the new International Criminal Court will be more likely to view war correspondents as convenient sources of evidence, and that reporters will find it difficult to fight orders to testify. They worry that the new court might not understand, or care, that while some European journalists may be willing to testify, American reporters view orders to testify as infringing on their rights and impairing their ability to gather news.

“We should not be seen anywhere as agents of the court,” said Roy Gutman, who won a Pulitzer Prize for Newsday for his coverage of the Bosnian war and who now is Newsweek‘s chief diplomatic correspondent. “In a war situation . . . if you’re seen as being somebody who will testify against somebody you just interviewed, what you wind up doing is compromising yourself.”

The Randal case

Randal was on assignment in Bosnia in 1993 when he interviewed Brdjanin, housing administrator for the Serbs, about ethnic cleansing.

In a story published in The Washington Post on Feb. 11, 1993, Randal quoted Brdjanin as saying that the “exodus” of non-Serbs from Bosnian Serb territory should be carried out peacefully to “create an ethnically clean space through voluntary movement.” The story continued: “Muslims and Croats, he said, ‘should not be killed, but should be allowed to leave — and good riddance.’ ”

The article also quoted Brdjanin as disagreeing with authorities in Serbia who pay “too much attention to human rights” to please European governments and Western opinion.

“We don’t need to prove anything to Europe anymore,” the article quoted Brdjanin as saying. “We are going to defend our frontiers at any cost . . . and wherever our army boots stand, that’s the situation.”

Prosecutors for the war-crimes tribunal want to introduce Randal’s article as evidence in Brdjanin’s trial. Brdjanin’s attorneys told the tribunal that they will accept the article as evidence only if they can cross-examine Randal. When Randal refused to testify, the tribunal issued the subpoena.

Randal’s attorneys asked the tribunal in May to withdraw the subpoena. They argued that forcing Randal to testify would set a dangerous precedent for journalists in wartime. Reporters’ abilities to gather news in war zones would be restricted, and their personal safety could be endangered if they are perceived as potential witnesses, the attorneys argued.

The tribunal rejected those arguments and ordered Randal to testify, but the ruling was not completely unsympathetic to journalists.

The tribunal agreed that journalists should not be subpoenaed unnecessarily and that subpoenaing a reporter to reveal confidential sources would “be a step in the wrong direction, a step backward, and a severe blow to the freedom of expression of journalists and the freedom of the media,” the tribunal’s ruling said.

Randal’s case did not involve confidential sources or unpublished information, the court noted, so those considerations did not apply.

“This Trial Chamber fails to see how the objectivity and independence of journalists can be hampered or endangered by their being called upon to testify, when this is necessary, especially in those cases where they have already published their findings,” the ruling said.

“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.”

The tribunal did not agree that Randal’s safety would be at risk if he testified. The tribunal noted that Randal is retired from the Post, and its ruling was unsympathetic toward Randal’s argument that forcing him to testify could endanger the safety of other reporters in war zones.

But the danger to all foreign correspondents was prominent in the Post‘s reaction to the ruling. The Post quoted Managing Editor Steve Coll as saying that “the last couple of years have made clearer than ever how hard is the work of independent correspondents in combat zones where many combatants are not formally aligned with any government and suspicious of the motives of the media.”

Coll expressed worry that those combatants will see foreign correspondents “as instruments of some faraway court or power and deal with them as such.”

The European view

Other journalists do not share the same concerns as those expressed by Randal’s attorneys and Coll.

Ed Vulliamy, a British correspondent, wrote in a May 19 editorial in The Observer in London that journalists have a duty to testify before war-crimes tribunals. Unlike Randal, he chose to testify when asked.

Vulliamy wrote that he was one of the first reporters allowed into the concentration camps in Omarska and Trnopolje in northwest Bosnia under the authority of Milan Kovacevic, one of the camp managers. Vulliamy testified in 1997 against Kovacevic.

“The court needs reporters to stand by their stories on oath,” Vulliamy wrote in his editorial about the Randal subpoena. “My belief is that we must do our professional duty to our papers and public, and our moral and legal duty to this new enterprise. Why should journalists of all people — whose information will be of such value — perch loftily above the due process of law?”

A British television station also willingly provided outtakes of footage of the Bosnian concentration camps to the tribunal, said Gutman, the Newsweek correspondent. Another British reporter testified before another U.N. tribunal on war crimes in Rwanda.

“In Europe, and particularly among our British colleagues, the answer is: they will testify,” Gutman said. “And it’s the exact opposite on this side of the pond. There are just different attitudes.”

The tribunal has asked Gutman to testify four times. His editors at Newsday, and later Newsweek, told him they would allow him to testify if he felt he had to, but they would pull him off the Bosnia story.

“I thought that was a pretty strong reason to run the other way,” Gutman said.

He asked the tribunal whether his testimony would be crucial to a conviction, or if there was another way to obtain whatever evidence the tribunal thought he had. The response? “They never got back to me,” Gutman said.

The willingness of some British reporters to testify did not necessarily hurt Randal’s argument that he should be not be forced to testify, Gutman said.

“The tribunal is aware that American reporters have a much different attitude than British reporters and European reporters,” Gutman said.

Logistical challenges

Ordering an American reporter to testify and actually forcing the reporter to show up at The Hague are two different things.

The U.N. tribunal and the International Criminal Court have no police force. They cannot serve subpoenas and cannot physically bring a reporter before them to testify. Instead, the tribunal and the International Criminal Court must rely on police in the country in which the reporter resides.

French police served the subpoena on Randal, and the tribunal will need the help of the French government to enforce the subpoena, Post attorney Eric Lieberman said. The Post has not asked the French government to intervene, Lieberman said.

It is not clear whether Randal would have been protected from the tribunal’s subpoena if he had been living in the United States. The U.N. Security Council set up the tribunal. Since the United States is a participating country in the security council, the U.S. government has a duty to cooperate with the tribunal, said Ruth Wedgwood, a professor of international law at Yale and Johns Hopkins University.

But the United States has stronger notions of a free press than other countries, so the U.S. government might be less likely to cooperate with tribunal subpoenas of reporters living here, Wedgwood said.

“There’s a good working relationship between the State Department and The Hague tribunal, so I do think The Hague tribunal would take seriously the views of the U.S. government on what is acceptable and unacceptable,” Wedgwood said.

Any subpoenas issued to U.S. reporters from the new International Criminal Court may not receive much deference from the U.S. government. That court, which was created by treaty in 1998, opened its doors on July 1 at The Hague and will hear cases of future war crimes. The court is independent of the United Nations, and President Bush has withdrawn this country’s former support of the treaty.

Reporters stationed in a country that has joined the treaty would be vulnerable to a subpoena from the new court, Wedgwood said.

For reporters stationed in the United States, Bush’s stance could mean that the U.S. government would be unlikely to serve a subpoena issued by the court, Wedgwood said.

However, the Bush administration has shown its unwillingness to consider reporters safe from subpoenas. Last year, the U.S. Justice Department subpoenaed an Associated Press reporter’s long-distance phone records. The agency also subpoenaed the testimony and research of aspiring book author Vanessa Leggett, who spent 168 days in jail when she refused to comply. The department argued that it never considered Leggett to be a journalist.

The Bush administration might honor a tribunal’s subpoena against a reporter, especially if the subpoena met the requirements of the Attorney General’s guidelines on issuing subpoenas to the news media. Generally, those guidelines allow the U.S. Justice Department to subpoena a reporter if the information is essential to an investigation and cannot be obtained elsewhere.

The need for rules

Randal’s experience points out the need for procedures for the treatment of reporters before war-crimes tribunals, said Gutman, who also is president of Crimes of War, a nonprofit project that tries to educate the public about the laws of war.

Rules protect lawyers, priests and workers for the International Committee of the Red Cross from being forced to testify. Journalists deserve the same protection, Gutman said.

A tribunal’s zealous pursuit of a reporter’s notes and testimony would hurt the real mission of bringing war criminals to justice, Gutman argues.

“One of the best protections against war crimes is the press putting its spotlight on them,” he said.

“It would be a terrible shame if that stopped. It would be a terrible setback for justice.”