ICTY Issues Landmark Ruling: Creates Qualified Privilege for War Correspondents
Friday, 13 December, 2002
ICTY Issues Landmark Ruling: Creates Qualified Privilege for War Correspondents
Friday, 13 December, 2002
Brdjanin’s lawyer had objected to the introduction of Mr. Randal’s article without allowing him the opportunity to cross examine the journalist about it. When Mr.Randal refused to appear before the court voluntarily, the prosecutor sought to have his appearance compelled. The Trial Chamber granted the subpoena and Randal sought to have it set aside by the Appeals Chamber. Thirty-four news organizations intervened as friends of the court (amici curiae) to argue for a qualified privilege for journalists to not be compelled to testify.
In today’s decision, the Appeals Chamber said that even if the Trial Chamber decides Mr. Randal should not be compelled to testify, the article he wrote, which precipitated the year-long legal proceedings, may still be admitted as evidence if it otherwise meets evidentiary standards. The trial court would have to find the article was “probative,” i.e. tended to prove something at issue in the case, and that it was sufficiently reliable. Mr. Randal’s article was offered by the prosecution to prove that the accused, Radoslav Brdjanin, had the required intent to commit crimes against humanity by forcible expulsion of non-Serb citizens from the Bosnian Krajina, colloquially called “ethnic cleansing.” In the article, Mr. Randal quotes the accused as saying non-Serbs should be moved out peacefully to “create an ethnically clean space through voluntary movement.” If his interview is accurate, however, his concept of “voluntary” is unorthodox. Randal writes: “Specifically, Brdjanin said, he is preparing laws to expel non-Serbs from government housing to make room for 15,000 Serb refugees and for Serb combatants’ families.”
While the article could be admitted without Mr. Randal’s appearance before the court, the Appeals Chamber said the lack of cross examination “would diminish the confidence the Trial Chamber could have in its accuracy.” As a result, the article would carry less weight in the court’s consideration.
The controversy over using Mr. Randal’s article as evidence in the Brdjanin case provided the vehicle for the Appeals Chamber to establish a clear legal standard to be applied in all ICTY cases where a party seeks to compel the testimony of war correspondents. Since the ICTY writes its own rules of procedure, the ICTY is more prone to wade into the arena of judicial law-making than national courts which defer to legislative bodies to write rules of general applicability whenever possible. As a result, the Appeals Chamber took the opportunity to create a clear standard to be applied in this case and future cases of this type, i.e. a qualified privilege for war correspondents.
It is important to remember at the outset that the “qualified privilege” created by the Appeals Chamber applies only to war correspondents. The court defined “war correspondents” as “individuals who, for any period of time, report (or investigate for the purposes of reporting) from a conflict zone on issues relating to the conflict.” Journalists reporting in non-conflict situations are no different than other potential witnesses before the court. The other point to keep in mind is that this case has nothing to do with protection of journalists’ confidential sources, a principle which is generally accepted.
The Appeals Chamber rightly based its decision on a balancing of interests. As important, it accurately defined those interests as the public’s interest in knowing what is happening in zones of conflict and the public’s interest in seeing that justice is done to those who violate international law in those conflicts. In the former, the majority of the Court recognizes that the interest at stake is not only the right of journalists to freely communicate information, but that of the public to receive it. “In war zones, accurate information is often difficult to obtain and may be difficult to distribute or disseminate as well. The transmission of that information is essential to keeping the international public informed about matters of life and death.”
When freedom of expression and the right to know conflict with the public’s interest to see justice done, a court must balance those interests. In doing so here, the Appeals Chamber defined the competing interests as follows. “On the one hand, there is the interest of justice in having all relevant evidence put before the Trial Chambers for a proper assessment of the culpability of the individual on trial. On the other hand, there is the public interest in the work of war correspondents, which requires that the newsgathering function be performed without unnecessary constraints so that the international community can receive adequate information on issues of public concern.” It is not so much that the public interests conflict. The underlying interest is similar – to preserve and protect humanity and its basic values.
The conflict occurs if compelling war correspondents to testify lessens their ability to report on wars and war crimes in the future. Though neither the Trial Chamber or the Appeals Chamber took evidence on the point, the Appeals Chamber concluded it was logical to assume a negative impact. “If war correspondents were to be perceived as potential witnesses for the Prosecution, two consequences may follow. 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 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.” Based on this assumption, the Appeals Chamber concluded that a privilege against being compelled to testify was necessary to protect war correspondents (and the public’s right to their information), but that it must be “qualified” in order to protect the public’s interest in seeing justice done.
In opting for a qualified privilege, the Court rejected the loose, case by case approach of the Trial Chamber as well as what it saw as an absolute privilege sought by appellant Jonathan Randal. Absolute privileges not to testify are rare, for obvious reasons. Privileges restrict evidence available to the court. The more there are, the greater likelihood that justice itself will be impeded. In adopting its test, the Court also distinguished it from that proposed by the amici curiae: that the testimony must be essential to the case, i.e. critical to determining the guilt or innocence of a defendant, and that the “information cannot be obtained by any other means.” The Appeals Chamber considered this standard “may be too stringent in that they [sic] may lead to significant evidence being left out.”
The test adopted by the Appeals Chamber to determine whether or not to compel testimony from a war correspondent is “two-pronged.” “First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case. Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere.”
A “core issue” is a lesser standard than “essential to the case,” for the latter implies that the case cannot be proved or defended without it, while the former would encompass any element necessary to prove the crime. Similarly, “direct and important” evidence does not have to be “essential” or “critical.” While it may seem a slight difference, it is not. The standard proposed by the amici would be extremely difficult to meet, while that adopted by the Court provides a more liberal approach. In a separate opinion, Judge Shahabbudeen found that the prosecution had met the first prong of the new test in the instant case. (He also concluded the newly adopted standard was no different than the more ambiguous standard applied by the Trial Chamber.)
The second prong of the Court’s new test is also a lower standard than that requested by the appellant or the amici. Where the amici sought to require a petitioner to show that the “information cannot be obtained by any other means,” the Court’s test requires a showing that “evidence sought cannot reasonably be obtained elsewhere.” “Reasonable” places a limitation on the efforts the seeking party is required to make.
Four members of the five member Appeals panel declined to apply their new test to the facts of the case before them. “[I]t is the role of the Trial Chamber to apply those principles in the particular circumstances of the case.” It did, however, go on to offer guidance to the Brdjanin Trial Chamber, as discussed at the beginning of this report. Judge Shahabbudeen, however, was not so reluctant. Though differing from the majority in his conceptualization of the legal principles involved in formulating a qualified privilege, he agreed with the establishment of a qualified privilege for war correspondents. Going one step further and applying the test created by the Appeals Chamber, he concluded that the Prosecution passed the first hurdle, but not the second. In his words, “the statements attributed by the article to the accused were ‘direct’; and they had important value in determining a core issue in the case, for, if true, they constituted an admission by the accused of his frame of mind in relation to some of the serious crimes charged. . . .” As for the second hurdle, Judge Shahabuddeen concluded that the Prosecution had failed to establish there was no reasonable alternative source for the information because Mr. Randal’s interview with Brdjanan was conducted through an interpreter, who could provide that source. Of course, the interpreter was also a war correspondent.
This raises more issues than it answers, however. While the interpreter could testify to Brdjanin’s answers to Randal’s questions, he or she could not answer for the way the article was written and the conclusions it drew. The article is more than a report of the interview. Randal includes statements from other sources as well as his conclusions drawn from all that he saw, heard and experienced. To contemplate the problems that are raised, one need only consider what would happen if the interpreter were called (and didn’t claim qualified privilege) and contradicted what Randal wrote. In that case, the only people who could counter his testimony would be Randal and the accused. One assumes Randal might want to come forward at that point – at least in the interests of preserving his reputation and good name. The other scenario that might arise is the interpreter claiming a qualified privilege, since he or she is also a war correspondent. In such a case, each might point to the other as being a reasonably available alternative source of the information. The prosecutor would likely choose which of the two she would like the court to subpoena, along with a showing that the other was not a reasonable alternative source of information.
The different scenarios that arise demonstrates why courts refrain from deciding hypothetical questions and why appeals courts, in the first instance, leave application of the rules they create to trial courts who can take direct evidence from the parties. In the “Randal case,” the majority was wise to leave the matter for further proceedings, if any, before the Trial Court.
While complications will always arise in applying a legal principle to the facts of a situation, the Appeals Chamber here did a commendable job, both in balancing the public interests involved to create a qualified privilege for war correspondents and establishing a clear test to determine when that privilege should be put aside in the greater interests of doing justice. It is an important milestone of international humanitarian law.
