Tribunal win may influence other courts

From the Winter 2003 issue of The News Media & The Law, page 40.

By Wendy Tannenbaum

In a victory for media worldwide, the appeals court of the United Nations International Criminal Tribunal for the former Yugoslavia in December adopted a qualified reporter’s privilege to prevent war correspondents from being forced to provide evidence in prosecutions of war criminals.

The decision provides considerable protection for journalists who cover conflict zones and who are subpoenaed to testify before the tribunal, located in The Hague, The Netherlands. Journalists hope that the ruling will be a precedent in other international courts, and perhaps even in the United States.

“This decision sets a standard for justice that respects journalistic independence and the principles of press freedom,” said Aidan White of the International Federation of Journalists in a statement. “The judges have ruled that journalists should have some exemption from the usual compulsion to give evidence. This is an important breakthrough in terms of international recognition of the neutrality of journalists while they are at work.”

The ruling arose from an appeal by former Washington Post correspondent Jonathan Randal, who was ordered June 7, 2002, to comply with a subpoena to appear as a witness before the court.

The subpoena sought Randal’s testimony in the prosecution of former Bosnian Serb Deputy Prime Minister Radoslav Brdjanin, who is on trial for genocide and deportation of non-Serbs during the 1992-95 Bosnian war. The prosecution subpoenaed Randal because he interviewed Brdjanin for a 1993 story.

In the appeal, Randal argued that compelling journalists to testify about their newsgathering activities could cause them to lose their neutrality and might endanger their lives.

The tribunal agreed, holding that a subpoena may be issued to a war correspondent only if the evidence sought is of direct and important value in determining a core issue in the case, and if the evidence reasonably cannot be obtained elsewhere.

The court adopted arguments made by Randal and the more than 30 news organizations who submitted a friend-of-the-court brief in the case.

“If war correspondents were to be perceived as potential witnesses for the Prosecution, two consequences may follow,” the court wrote. “First, they may have difficulties in gathering significant information because the interviewed persons, particularly those committing human rights violations, may talk less freely with them and may 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.”

Media advocates, not knowing quite what to expect from the 9-year-old court, were ecstatic with the decision.

“It’s a real breakthrough,” said Floyd Abrams, who represented the media group in the appeal.

The ruling assures that war correspondents can continue to perform their already dangerous jobs without being placed in the position of having to take extra risks in order to gather the news, he said.

The ruling is especially strong, Abrams said, because Randal’s case did not involve a confidential source. Some courts in the United States recognize a privilege only when there is a confidentiality agreement between the reporter and his source.

The U.N. court said the strength of the privilege should depend not on how the information was obtained but rather on the potential impact of compelled disclosure on the war correspondent’s newsgathering process.

Other courts

The U.N. tribunal was the first international war-crimes court to face the issue of the reporter’s privilege, according to court papers.

“I think it fair to say that 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 told the appeals court at oral arguments in October 2002.

He called the court’s task of deciding whether to adopt a privilege a “special opportunity as well as an obligation.”

The five-judge panel appeared to take its responsibility seriously. Its decision, while focused on the case at hand, discussed in broad terms the work of reporters in conflict zones and their need for protection in the courts.

However the decision is not technically binding on other courts.

“Humanitarian law is a very specific field that hasn’t really developed,” said Roy Gutman of the Crimes of War Project in Washington, D.C., a collaboration of journalists, lawyers and scholars dedicated to raising public awareness about the laws of war. Until recently, courts were established ad hoc to address specific, regional calamities. What one court decides on a given issue “doesn’t necessarily tie in with any other system.”

Nevertheless, because the war crimes prosecution community is small, and issues faced by the various courts overlap, a ruling from one court might influence another court’s decision making.

Humanitarian law experts say that the tribunal’s ruling might affect at least four courts.

The U.N.’s International Criminal Tribunal for Rwanda likely will follow the Randal rule, international law experts say. That court, like the tribunal for the former Yugoslavia, was set up by the U.N. on an ad hoc basis. The Rwanda court prosecutes genocide and other crimes committed during the country’s period of strife in 1994.

Although the Rwanda court is located in Africa, the same judges presiding in the Yugoslavia court make up its Appeals Chamber. Experts therefore expect that the Rwanda court will adopt any rule of law created in The Hague.

A Human Rights Court for East Timor investigates crimes against humanity that occurred in that Indonesian region in 1999. Although human rights groups criticize the court’s progress in prosecuting wrongdoers, rules adopted in other human rights courts could influence its procedures.

Judges for a new war crimes court in Sierra Leone were sworn in in December 2002. A U.N. press briefing said the new court will be “administratively very different” from the courts for Rwanda and the former Yugoslavia, in part because the court will include judges from Sierra Leone and will therefore not be purely international.

One of the international judges on the court is Geoffrey Robertson, the British attorney who represented Randal and the Washington Post in The Hague case. His presence on the panel is a sign that the Sierra Leone court might adopt the rule he pushed for in Randal’s case.

But the court that worries journalistic and humanitarian groups the most is the recently formed International Criminal Court. The ICC is the first permanent, international tribunal, with global jurisdiction.

The court will prosecute the most serious crimes against humanity, when responsible countries fail to do so themselves. The ICC opened its doors in The Hague in June 2002 and currently is electing judges.

International media advocates, including Gutman, believe the ICC must adopt a testimonial privilege for war correspondents.

“The press itself by putting the spotlight on crime can help get rid of it,” said Gutman, who covered conflicts in the Balkans and the Middle East for Newsweek magazine. Court rules should not limit the ability of war correspondents to uncover crimes against humanity, he said. The role of reporters in conflict zones is deserving of protection.

It is incumbent upon journalism groups to push the ICC to adopt a privilege for journalists, Gutman said. The court should have clear rules on the issue from the start. A rule modeled after the one created in the Randal case would adequately protect reporters’ interests, Gutman said.

Limited to war correspondents

Advocates would love for the Randal decision to serve as precedent in other domestic courts in Europe and around the world, but the limited nature of the ruling may preclude its reasoning from reaching beyond the context of war crimes.

According to Eric Lieberman, an attorney for the Washington Post, the Randal ruling applies only to war correspondents, not to all journalists. This is “made very clear from the outset” of the opinion, he said.

Indeed, the tribunal took care in its ruling to separate war correspondents from other reporters. The court defined “war correspondents” as “individuals who, for any period of time, report (or investigate for the purpose of reporting) from a conflict zone on issues relating to the conflict.”

Lieberman said it is clear that the Randal decision “really wouldn’t apply to [other] journalists because the policy reasons” behind the decision relate specifically to war reporting. The judges based much of their decision on the need to keep reporters out of danger.

Nevertheless, media attorneys hope that the general principles behind the decision will spill over to other courts.

“It’s a very serious and sophisticated opinion by a learned court,” Abrams said. “And the fact that the tribunal did not have a First Amendment to rely on makes the ruling in favor of reporters even stronger.”

The future for journalists as a result of this case “look very good,” he said.

(Prosecutor v. Brdjanin, Decision on Interlocutory Appeal)