War Crimes Witnesses Can Stay Silent
A former Washington Post reporter won an appeal Wednesday to the U.N. war crimes tribunal and will not have to testify about an interview with a Bosnian Serb official accused of ethnic cleansing.
The five-judge appellate court said war correspondents should be allowed a limited exemption from being compelled to testify.
Before calling a journalist to appear, the court must be convinced that the "evidence has a direct and important value in determining a core issue in the case," and that there is no reasonable alternative for obtaining the evidence, the judges said.
In Jonathan Randal's case, the judges doubted whether the retired Post reporter's evidence fit either criterion, and canceled his subpoena. But they said if the prosecutors wished to try again, they could apply for a new subpoena to the lower court.
Randal had resisted a subpoena to appear against Radovan Brdjanin, a Bosnian Serb leader he interviewed in 1993. Brdjanin is on trial for the persecution and expulsion of more than 100,000 non-Serbs during the Bosnian war.
The decision will be seen as setting a precedent in other international courts dealing with war situations.
"We're delighted. This is I think a really important decision for journalism and international law," said Post managing editor Steve Coll, speaking in Washington.
Randal was supported in his appeal by 34 international news organizations, including The Associated Press, which asked the court to grant limited privilege for journalists against testifying to further their safety in the field and ability to gather information in war zones.
The court said it was in everyone's interest for reporters to work freely in war zones, and to bring attention "to the horrors and reality of warfare."
It noted that "images of suffering of detainees" at a detention camp in Bosnia "played a vital role in awakening the international community to the seriousness of the situation."
Randal's lawyer, Geoffrey Robertson, called the decision "a great boon for reporters."
He said the judges understood that "for war correspondents to be routinely compelled would threaten their neutrality."
The prosecution in the Brdjanin case had argued that journalists should have no special privileges, and argued they were no different from other international workers, such as U.N. and Red Cross personnel.
In a Feb. 11, 1993, story, Randal quoted Brdjanin as advocating the expulsion of non-Serbs from the Bosnian city of Banja Luka.
The article described Brdjanin as a Serbian housing official and said he "personally argued that those unwilling to defend Serb territory must be moved out but that the Serb political leadership so far had not agreed. He said he believed the exodus of non-Serbs should be carried out peacefully to create an ethnically clean space through voluntary movement. Muslims and Croats, he says, should not be killed, but should be allowed to leave — and good riddance."
Randal was summoned after he told tribunal investigators that a local journalist was with him and had translated Brdjanin's words. The prosecutors said they wanted him to testify because those quotes did not appear in an article written three days later by the second journalist, whose name was being kept secret for his own protection.
The case is one of several involving the issue of whether journalists, as observers of war crimes and investigators of human right abuses, have an obligation to testify before courts and tribunals.
Britain wrestled with the controversy earlier this year, when an inquiry called for testimony from several journalists who had probed the 1972 Bloody Sunday massacre by British troops. Some refused, facing jail time.
Journalists themselves are not unanimous on how to handle subpoenas. Earlier this year, veteran BBC correspondent Jacky Rowland testified against Slobodan Milosevic.