Perils of Reporting Justice

The fresh indictment of a Croatian journalist for contempt of court this month has once again put the spotlight on the tribunal's treatment of journalists reporting protected information.



Domagoj Margetic, a freelancer from Croatia, is accused of revealing the names of witnesses who testified under protective measures in the trial of the Bosnian Croat general Tihomir Blaskic.



Margetic, who was previously indicted for contempt by the tribunal last year, stands accused of “publishing lists on his personal website between July 7 and August 2” despite a warning from the court that the material was confidential.



He was arrested on August 4 this year, by Croatian authorities acting in cooperation with the Hague court, and has since been released after 32 days in detention.



Prosecuting journalists for contempt is a new phenomenon at the tribunal and one which has raised questions about its powers to punish journalists accused of reporting sensitive leaked information.



But it also highlights the obligation of journalists to adhere to the ethics of their profession - not least to consider the possible consequences of publishing sensitive information, rather than limiting their concern to what makes a good headline.



Protected witnesses are often in a very delicate situation. They come to the Hague to testify at war crimes trials, despite the personal risk their appearance in court involves.



Not only are their own lives at stake, but also those of close relatives.



Witness intimidation exists throughout the Balkans, and, according to the tribunal's Office of the Prosecutor, OTP, there have been numerous occasions on which witnesses whose identities were revealed despite all protective measures have been threatened and sometimes killed.



Perhaps most notorious is the witness intimidation allegedly perpetrated by Vojislav Seselj, the Serbian ultra-nationalist leader.



A court document of June 23, 2005 states that Seselj, who was privy to secret information when conducting his own defence, shared the name of a protected witness to an unauthorised person over the phone, who is said to have promised to “disable” the witness.



Potential witnesses face particular danger in the troubled region of Kosovo, because of the prevalence of organised crime and a lack of the rule of law.



In July 2003, tribunal prosecutors reported that several possible witnesses in the case against three former KLA members accused of the abuse and murders of detainees at the Lapusnik camp had been “directly approached or have received messages or calls, and [have been] told that they will suffer retaliation if they testify in the case”.



One witness, they said, even had to be relocated abroad after NATO forces in Kosovo found evidence of a plot to kill him.



Last year, one witness testifying under protected measures against ex-KLA guerrillas in The Hague said in court that he felt “very much endangered” by having to testify.



It is this backdrop of intimidation which has prompted lawmakers at the tribunal to insist on stringent measures to govern contempt, encapsulated by rule 77 of the court's Rules of Procedure and Evidence.



Rule 77 allows the tribunal to hold individuals in contempt for a number of offences.



This includes anyone “who knowingly and wilfully interferes with its administration of justice”; anyone who discloses information in “knowing violation of an order of a chamber”; and anyone who interferes with a witnesss or potential witness “who has given or is about to give evidence in proceedings” before the chamber.



Those found guilty face a maximum penalty of “a term of imprisonment not exceeding seven years, or a fine not exceeding 100,000 euros, or both”.



Journalists first fell foul of this rule last year, when five members of the Croatian media and a former official were indicted for contempt of court, charged with revealing the identities or other information about protected witnesses.



These individuals were Ivica Marijacic, a journalist and the then-editor-in-chief of the Zagreb-based weekly publication Hrvatski List; Markica Rebic, the former head of Croatia’s security services; Marijan Krizic, the editor-in-chief of the weekly magazine Hrvatsko Slovo; and Stjepan Seselj and Margetic, who worked for Hrvatsko Slovo.



The chief prosecutor later dropped the charges case against Seselj, Margetic and Krizic, claiming this was the result of “increasing pressure... to limit the scope of prosecutions”.



Meanwhile, the trials of Marijacic and Jovic went ahead.



Marijacic, along with Markica Rebic, the former head of the Croatian Security Information Service, SIS, was the first journalist to be found guilty of contempt in March this year, for disclosing information on the testimony of a Dutch army officer who testified under protective measures in the Blaskic case.



Then in August, Josip Jovic, former editor-in-chief of the Split-based Croatian daily Slobodna Dalmacija, was convicted and fined 20,000 euro for revealing the identity, witness statement and secret testimony of the current president of Croatia, Stjepan Mesic, in defiance of the tribunal's orders.



Jovic has announced his intention to appeal, while Marijacic and Rebic's attempts to overturn their judgements were dismissed by the appeals chamber this week.



Neither in the Jovic case nor in the Marijacic and Rebic cases was the protected witness whose identity was revealed actually harmed - but regardless of this, both judgements stressed the need to maintain public confidence in the ability to protect witnesses.



Some observers say the decision to prosecute and convict these journalists was a necessary clampdown on the reckless publication of confidential information, while others claim it was a worrying attempt by the tribunal to stifle the press.



Jovic's case has attracted particular scrutiny, highlighting the conflict between press freedom to report sensitive information and the need to protect witnesses called to testify at war crimes trials.



Following his arrest in December 2005, after he failed to come to The Hague to enter a plea, human rights organisations, such as Reporters Without Borders, RSF, clamoured for Jovic’s release.



Then a day after his conviction, RSF published on their website a report by Thierry Cruvellier, editor of the Paris-based online newsletter International Justice Tribune, about the difficult relationship between journalists and the international tribunals for the former Yugoslavia and Rwanda.



Referring to the contempt cases involving the Croatian journalists, Cruvellier claimed that in spite of what he considered “the poor reputation of the media and journalists involved, the nationalist politics that motivated them and their openly partisan character”, there was a concern that these cases could set a judicial precedent that would then apply to all journalists reporting on the international courts.



The controversy surrounding the Jovic case was heightened by his defence that he revealed information about a president, and therefore a figure of public interest.



In addition to this, Jovic's supporters pointed out that Mesic's status as a protected witness had already been revealed, including on the pages of the tribunal itself, as well as in various IWPR reports.



In an interview with IWPR, Jovic maintained that as Croatian president at the time of the revelations, Mesic was “the most protected person in the country” and in no danger from the disclosure.



Keen to distance himself from the alleged - and seemingly indiscriminate - actions of Margetic, Jovic argues that the information he published was justified by its public interest value.



“Mesic is a public figure, his testimony is of public interest and has a great political significance for the whole country. The witnesses in the Margetic case are common people, and those witnesses are not protected,” he said.



Jovic asserts that the responsibilty to protect the identity of witnesses lies not with the journalist but with the court.



“Secrets of the court must be protected by the people that are obliged to do so, journalists and media are by definition part of the public, so you can not expect them to protect someone or something from the public,” he said.



This view that journalists reporting a leak should in certain situations be exempt from prosecution is shared by Miklos Haraszti, Organisation for Security and Cooperation in Europe, OSCE, Representative for Freedom of the Media.



Haraszti's concern at Jovic's initial arrest in October last year led him to write to

the tribunal's president, Theodor Meron, pressing for his release and requesting the amendment of rule 77.



Haraszti is calling for changes to be made to empower prosecutors and judges to exempt from contempt of court charges journalists who have reported issues of legitimate public interest - most crucially - at the time of publication.



Following Jovic's conviction last month, Haraszti addressed tribunal chief prosecutor Carla del Ponte at an OSCE conference in Vienna, repeating his call for a change to rule 77.



He argued that “the former involvement of a head of state with a court would make news in any country with a free press”, and that “the obvious public-interest content of that news would be seen as attenuating circumstance when it comes to prosecution of the journalists who broke that news in defiance of a ban”.



Haraszti further claimed that the amendment he sought “would still protect the integrity of the judicial process, but would also weigh that value against the overall public interest in a free flow of information, which is another basic democratic value”.



In an interview with IWPR, he explained his concerns about rule 77, at the root of which lies his belief in the need for healthy debate in the region following the conflicts of the Nineties.



Haraszti also warned of the potential stifling or “chilling effect” on the media of the tribunal’s indictment of five journalists for contempt.



“An obligation of international jurisdiction and the court is to help those in Eastern Europe to come to terms with their past. That cannot happen without society being allowed to have an honest discussion,” he said.



Haraszti argues that rather than weakening the court, inserting a waiver into rule 77 for journalists reporting leaked information of genuine public interest would instead strengthen its authority.



“When a waiver to report issues of legitimate public interest is not factored into the rules, then journalists can claim that they reported something of public interest, and were abused.... They can make a patriotic case out of it,” he said.



Haraszti's additional concern over the maximum sentence of seven years and 100,000 euro fine for contempt is shared by RSF.



So far, there have been no cases of the prosecution calling for imprisonment of journalists for contempt, but Jeff Julliard of RSF says judges' implementation of rule 77 must be monitored to ensure their powers are not abused.



Referring to the Margetic case he said, “We recognise that in this case, he did something wrong to publish these names and perhaps put the witnesses in danger, and we don't support that practice, but we ask the court to award an appropriate sentence - not a prison term, but a fine.”



The climate throughout the former Yugoslavia is such that witnesses and potential witnesses remain vulnerable to nationalist intimidation, says Anton Nikiforov, the spokesman for the OTP.



He cites regular instances of potential witnesses in both international and local war crimes trials being threatened and killed, particularly in Kosovo.



Refik Hodzic, the tribunal spokesman, agrees witness protection is one of the court’s main priorities.



He confirms that protective measures are granted where there is a need, based on individual assessment of witnesses, and argues that these must be protected at all costs if justice is to be done.



The issue at stake in these contempt cases, says Hodzic, is not freedom of speech, but the need to protect the legal process when prosecuting complex and sensitive war crimes.



He dismisses the defence of public interest in the contempt cases which have come before the tribunal.



“This is not some secret in the public interest that would change the course of history if it was revealed,” he said.



“In exposing witnesses, these people are undermining one of the cornerstones of the trial chamber's ability to provide fair trials.”



Protecting the law, and preventing exposure of protected witnesses is sacrosant, agrees Dragutin Lucic, the president of the Croatian Journalists' Association, HND, who is also dismissive of the defence by Jovic that his breach of rule 77 was in the public interest.



“That was not the predominant factor in the Jovic case. If somebody is protected by law, they must be protected,” he argued.



While Lucic has attempted to defend Jovic's rights as a journalist by discussing his case with Del Ponte, he told IWPR that he feels Jovic's conviction is fair.



The media in Croatia has come a long way since the late 1990s, when the HND campaigned for an end to the restrictions of the era of the late president Franjo Tudjman, who clamped down on reporting critical of the government. Croatia’s constitution now bans censorship and guarantees a free press.



But a need to balance this newfound press freedom with respect for court orders issued to protect witnesses is an issue that has important implications both for international war crimes trials, and for those to be conducted on Croatian soil.



It will be interesting to see how the Croatian press handles reporting of the Norac and Ademi trial, the first case to be passed from the tribunal to the Croatian judiciary, which is expected to start later this year.



Caroline Tosh is an IWPR reporter in The Hague.