A Dec. 12 article on a ruling by the U.N. war crimes tribunal at The Hague that a former Washington Post reporter could not be compelled to testify in a case relating to the war in Bosnia incorrectly stated the position of the Coalition for International Justice. The group believes that war correspondents should generally enjoy special protection against forced testimony in war-crimes prosecutions because of the danger they face and the importance of their reporting in war zones. It believes that immunity should be denied only in cases where the evidence they might provide is direct and important to a core issue in the case, and could not be reasonably obtained from another source. (Published 12/17/02)
A former Washington Post reporter cannot be compelled to testify at a U.N. war crimes tribunal in The Hague, an appeals panel at the tribunal ruled today, in a decision that press freedom advocates said would protect reporters' ability to work in the danger of combat zones.
The five-judge panel upheld Jonathan C. Randal's argument that the personal safety and independence of journalists could be jeopardized if they were required to give evidence in such trials. Journalists have been divided over this issue, with some saying immunity is needed but others saying they have a moral obligation to testify.
Overturning a ruling by a lower court at the tribunal, the judges stated that testimony from war correspondents had to be "direct and important" to the core issues in a case and had to convey information that could not reasonably be obtained from other sources.
The panel said prosecutors could attempt to reissue their subpoena seeking Randal's testimony in the trial of a former Bosnian Serb leader whom he interviewed for an article that appeared in The Post in 1993. But the judges also said they found it "difficult to imagine how the appellant's testimony" could meet the dual criteria they had established.
The ruling at the U.N. International Criminal Tribunal for the former Yugoslavia drew praise from many press freedom advocates.
"It's a true breakthrough," said Floyd Abrams, a First Amendment lawyer from New York who filed a friend-of-the-court brief supporting Randal and The Post on behalf of 34 news organizations worldwide, including Dow Jones, the New York Times, three major U.S. television networks, the BBC, the Associated Press and organizations from Britain, France, Australia, South Africa, Greece and Serbia.
"This ruling from an international court assures that war correspondents can do their job without the concern they will be routinely placed in the impossible position of testifying against their sources," Abrams said.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Arlington, called the ruling "stunning and wonderful." She said that "for the very first time, this influential court has recognized a reporter's privilege outside the borders of the United States."
Legal experts who argue that journalists deserve no special rights said the decision did not undermine their position. "We feel very strongly, as do many journalists, that they have a moral responsibility to come forward and bear witness in cases where their testimony is important, and we don't believe this decision in any way rejects that concept," said Judith Armatta, a lawyer who is The Hague's representative for the Coalition for International Justice, a nonprofit group in Washington that supports international war crimes tribunals.
Randal was issued a subpoena last February to appear at the three-year-old trial of Radoslav Brdjanin, a former deputy prime minister of the Bosnian Serb government who is accused of killing, torturing or expelling from their homes more than 100,000 non-Serbs during the 1992-95 war in Bosnia.
In a Washington Post article published Feb. 11, 1993, Randal quoted Brdjanin as advocating the expulsion of Croats and Muslims. When Brdjanin's defense counsel challenged the accuracy of parts of the article, the prosecution sought Randal's testimony to defend it.
Randal's attorneys have maintained that journalists should have qualified immunity from testifying for reasons of personal safety and freedom of the press. They also argued that Randal's testimony was of no practical value because he had used a translator and did not speak Serbo-Croatian. But the lower court ruled in June that Randal's testimony was "pertinent" and that he should take the stand.
Randal's attorneys appealed that decision. In overturning the decision today, the panel cited "society's interest in protecting the integrity of the news-gathering process," and said that news sources in war zones would be less inclined to talk freely to reporters or might target reporters for reprisals if they believed the journalists might testify against them.
Although Randal's attorneys did not argue that journalists should have absolute immunity against testifying, they said the testimony had to be of "crucial importance" and pose no danger to the journalist or the journalist's colleagues. The appeals court, in invoking a less stringent "direct and important" standard, did not go as far, but Randal nonetheless said he was gratified by the ruling.
"My feeling is that wars are becoming more dangerous for correspondents and forcing them to testify would only increase the dangers," said Randal, who in 45 years as a correspondent frequently covered armed conflicts. "It's hard to gain the confidence of combatants. Either they won't talk to us at all or they'll kill us. I wanted the court to think long and hard about that."
The question of whether reporters should appear in court has divided the international journalistic community. Analysts said the dilemma is growing more acute because international prosecutions are likely to become more common, following the recent establishment of the International Criminal Court, which is meant to have general jurisdiction the world over.
Jacky Rowland, a BBC television correspondent formerly based in Yugoslavia, testified at the tribunal against the country's former president, Slobodan Milosevic, in August. In an interview, she said she did not believe such testimony would endanger her safety or that of other war correspondents. "We are human beings and ordinary people, we're not a priesthood," said Rowland, who is now based in Moscow. Emphasizing that journalists should follow their consciences in deciding whether to give evidence, she added, "I think perhaps our own readers and viewers might get suspicious if we started claiming special privileges and exemptions."
Florence Hartman, prosecution spokesman in the Brdjanin case, said prosecutors would decide sometime in the new year whether to pursue another subpoena for Randal. "We're pleased that the court did not grant a systematic privilege for all journalists," she said. "We welcome and understand the fact that the court is trying to prevent war correspondents from being subpoenaed unnecessarily."
Staff writer Howard Kurtz in Washington contributed to this report.