Institute for War and Peace Reporting | Giving Voice, Driving Change
Courtside: Randal Appeal Victory
Randal, 69, was appealing against a prosecution order to appear as a witness in the trial of Radoslav Brdjanin, who is accused of helping organise Serb ethnic cleansing in Bosnia.
Randal argued, successfully, that journalists might lose their independence and endanger their lives if their stories were to be used as evidence in war crimes trials.
But while it ruled in his favour, the appeals chamber judgement fell short of an immunity deal similar to that enjoyed by Red Cross workers, who can never be called as witnesses.
Instead, the chamber decided that while journalists could not be forced to testify "if they do not wish so", this did not apply to all circumstances.
The appeals chamber has granted journalists qualified privilege - a form of protection for what they write, providing only that it is true and accurate. Roughly speaking, the chamber has made a distinction between indirect and direct evidence.
Most journalists provide indirect evidence of war crimes through stories from witnesses. This was the case with Randal: the prosecution evidence focused on an interview he conducted with Brdjanin in 1992, in which the latter boasted of the success of ethnic cleansing.
The journalist was summoned when the defence demanded that he appear to be cross-examined about his article.
Randal's case was controversial from the start because the evidence in question would not necessarily convict Brdjnanin.
This is because Brdjanin is not denying that ethnic cleansing took place. He is not even denying that he may have boasted about it. Rather, his defence team argues that even if he had supported it personally, it made no difference because his position, as head of a so-called Serb crisis committee, gave him no power over the security forces who carried out the ethnic cleansing.
But what was a storm in a teacup grew into a typhoon when Randal, having at first agreed to testify, suddenly changed his mind, claiming it would set a difficult precedent.
He was soon backed by 34 mostly-American news organisations, including his former employers, the Washington Post.
While many reporters said they were in favour of helping the war crimes court, they insisted this must remain a matter for the conscience of an individual journalist, and must not be imposed.
In fact, the idea of forcing a witness to testify is unusual in itself. In all other cases, potential witnesses will simply choose to forget things if forced to testify.
But journalists are in a difficult position, because their "testimony" is already out there, in the form of stories written from the battlefields.
Randal's supporters have also pointed out that using stories as witness material is dangerous, arguing that no man should be convicted of war crimes, the most serious offences known to man, because of newspaper articles.
From now on, it is likely that the judges will heed this advice: Randal may still face a new bid by the prosecution to force him to appear before the court, but it is unlikely to succeed. This is because the appeals chamber has ruled, in effect, that they cannot be forced to testify on "indirect" evidence.
But journalists can still find themselves in court, if they themselves witnessed a war crime or if their research unearthed some piece of vital evidence unobtainable anywhere else.
Journalists, in other words, can expect a subpoena if the information they might produce is of direct and important value to a core issue in a case and if the evidence cannot reasonably be obtained elsewhere.
"It's a watershed moment for many journalists. The appeals court has done press freedom a service today," said the International Federation of Journalists executive director Ann Cooper. "We are relieved that the Randal subpoena has been set aside and hopeful that the ruling will set a precedent providing journalists with important protections under international law."
The appeals chamber later stressed that the decision refers only to war correspondents, not to all journalists. The former play a vital role in bringing the horrors and reality of conflict to public attention, said the chamber.
It recalled that "the images of terrible suffering of the detainees at the Omarska camp, that played an important role in awakening the international community to the seriousness of the human rights situation in Bosnia-Hercegovina, were broadcast by war correspondents".
The appeal chamber decision required a considerable balancing effort. It had to protect war correspondents but in such a way that it does not hamper the tribunal's mission to establish the truth about responsibility for the crimes in former Yugoslavia.
Public interest lies both in freedom of journalists and in the ability of the court to hear evidence, said the appeals chamber.
Randal's counsel had proposed that journalists should only be called when their evidence is of essential value - that is, when it can determine guilt or innocence of an accused. Such restrictions would have amounted to almost absolute privilege and lead to significant evidence being left out, said the chamber.
The wording was carefully chosen: "Only when a trial chamber finds that evidence sought...is direct and important to the core issue of the case, can a war correspondent be compelled to testify", and only if the evidence is not available from a source other than a war correspondent.
This criterion should ensure that the trial chamber has access to all significant evidence - and it should prevent war correspondents from being subpoenaed unnecessarily.
Chris Stephen is IWPR Bureau Chief in The Hague and Vjera Bogati is an IWPR editor and a journalist with the SENSE news agency.
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