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Reporter ordered to testify before war-crimes tribunal

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  1. Protecting Sources and Materials

    NMU         THE HAGUE         Confidentiality/Privilege         Jun 11, 2002    

Reporter ordered to testify before war-crimes tribunal

  • A U.N. tribunal investigating war crimes committed during the Bosnian war subpoenaed a former reporter for The Washington Post to testify about a story he wrote quoting a Serb nationalist charged with genocide and other crimes.

A U.N. war-crimes tribunal ordered a former reporter for The Washington Post to testify in the trial of a former Serb nationalist accused of genocide and other crimes in the Bosnian war.

In a June 7 decision, the tribunal refused to grant journalists a privilege against testifying in cases that do not involve confidential sources or unpublished information.

The tribunal had subpoenaed Jonathan Randal, a retired Post reporter now living in Paris, to testify against Radoslav Brdjanin, a Bosnian Serb charged with genocide and the deportation of non-Serbs during the 1992-95 war in Bosnia.

In a story published on Feb. 11, 1993, Randal quoted Brdjanin, a Serb nationalist and housing administrator, 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.’ ”

Prosecutors for the International Criminal Tribunal for the former Yugoslavia wanted to introduce Randal’s article as evidence. Brdjanin’s attorneys told the tribunal that they would accept the article as evidence only if they could cross-examine Randal. When Randal refused to testify, the tribunal issued the subpoena.

Post attorneys argued before the tribunal in May that forcing Randal to testify would set a dangerous precedent for journalists in wartime. Reporters’ ability 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 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,” its ruling said.

But those considerations did not apply since Randal was not protecting a confidential source or unpublished information, the tribunal decided.

“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 also noted that Randal agreed last year to testify that the quotes attributed to Brdjanin were accurate. The panel also did not agree that Randal’s safety would be at risk if he testified.

The tribunal will need the help of the French government to enforce the subpoena, said Post attorney Eric Lieberman.

The newspaper will ask for permission to appeal before the tribunal’s appeals chamber, Lieberman said.

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 regard journalists “as instruments of some faraway court or power and deal with them as such.”

MD

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