The legal brief, released yesterday by The Hague’s appellate court, reiterated the prosecutors’ case that retired Washington Post reporter Jonathan C. Randal must appear as a witness in the trial of Bosnian Serb Deputy Prime Minister Radoslav Brdjanin, despite adamant appeals by several of the world’s largest news agencies to exempt journalists from testifying in war crimes trials.
The brief comes in response to a legal appeal filed on behalf of the 69-year-old Randal and the Post challenging a lower court’s decision to compel Randal to testify against Brdjanin. The former Yugoslav official,whom Randal interviewed in 1993, is accused of persecuting and expelling more than 100,000 non-Serbs from northwest Bosnia during the 1992-95 war.
UN investigators in early June first told Randal, who now lives in Paris, that he was required to testify against Brdjanin. Although the retired reporter offered to supply UN prosecutors with a written statement verifying his interview of Brdjanin nine years ago, Randal refused to appear as a witness in court.
“Journalists would as a collective profession be put at risk of greater harm and danger,” Randal argued in his written request to dismiss the subpoena.
Randal’s former employers at the Post supported his concerns. In a brief addressed to the UN tribunal’s appeals court, attorneys for the newspaper argued that reporting on regional conflicts would become more dangerous if sources feared their interactions with reporters could be used against them later in a war crimes trial.
“They [journalists] are not tools of the prosecution or investigative arm of government or court and it is important to honor that distinction,” lawyers representing Randal and the newspaper wrote in their submission to the court.
Thirty-four other media organizations, including the BBC, the Associated Press and CNN, as well as journalists’ associations, have joined the appeal, according to court documents.
The media organizations urged the tribunal to establish a “qualified privilege” for journalists that would exempt them from subpoenas “unless their testimony is absolutely essential to the germination of the case and the information cannot be obtained from any other means.”
The UN prosecutors replied in their brief that Randal’s subpoena meets the media group’s criteria because his evidence cannot be obtained elsewhere and is deemed essential in their case against Brdjanin.
Prosecutors also noted that Randal was not trying to protect a source, since his interview with Brdjanin was already published; therefore, he should not be be concerned about reprisal for his testimony. Randal conducted his interview with Brdjanin through an interpreter, identified only as “X,” whom Brdjanin’s defense deemed hostile and biased.
However, the prosecutors cautioned that the war crimes tribunal should avoid setting any major precedent or “sweeping ground rules” for ordering reporters to the witness stand.
Though the date of the appeals hearing has not been scheduled, Jim Landale, a spokesman for the International Criminal Tribunal for the former Yugoslavia, said the appeals chamber’s judges would “not sit on it [the case] for months and months.”
Landale could not comment on possible penalties Randal might face if he defies the court order to appear.
The escalating conflict between the tribunal and media groups comes as BBC reporter Jacky Rowland concluded her testimony in the trial against former Yugoslav President Slobodan Milosevic on Thursday. Milosevic, who is leading his own defense at The Hague, has been accused of orchestrating ethnic massacres during the Balkan wars of the 1990s.
Rowland, the former Belgrade correspondent for the BBC, said she voluntarily appeared as a witness at the Hague tribunal, calling it a continuation of her war coverage.
“My meeting with Milosevic in the courtroom — my only meeting with him — somehow drew a line under my years of reporting from the Balkans,” Rowland wrote in an article published yesterday in The Guardian, a London-based newspaper.
“I just regard it as a duty, and not something to be shirked from,” Rowland told The Guardian on Aug. 20. “What puts us in some kind of different ethical category from everyone else? And I don’t really buy the argument that it makes life more dangerous for journalists. Life is dangerous for journalists anyway, and in an era of 24 hour news, people are more likely to demand your tapes and equipment immediately rather than be worried that you might testify against them at some tribunal three years down the line.”
Although some reporters, like Rowland, have decided to testify before the tribunal, others have said acting as a witness would jeopardize journalists’ lives and professions.
“The reason to resist becoming a participant is obvious: If dictators see reporters as potential witnesses in prosecutions, tyrants in trouble will be likely to kill those witnesses,” New York Times columnist William Safire wrote on June 21.
Last year, fifty-five journalists were killed while reporting from war zones, according to the International Press Institute.