U.N. war-crimes panel wants U.S. journalist's testimony

By The Associated Press,
freedomforum.org staff

06.11.02

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THE HAGUE, Netherlands — A United Nations war-crimes tribunal has rejected as "utterly unfounded" the refusal by an American journalist to testify about an interview with a suspected war criminal that was published in The Washington Post.

The decision announced late yesterday could set a precedent for journalists called to testify before international courts. It is the first time a journalist objected to giving evidence at the Yugoslav tribunal, established in 1993 by the U.N. to try Balkan war-crimes suspects.

A panel of three U.N. judges dismissed the motion on behalf of retired reporter Jonathan C. Randal in which his publication argued that compelling journalists to testify could endanger their lives and the lives of sources.

"There is absolutely no indication at all that if forced to testify in this case, Randal could possibly be exposed to physical harm or any other kind of harm or risk," the court found. "What is worse is that he expects this trial chamber to assert the journalistic qualified privilege" based on examples in the United States, "which almost in their entirety dealt with cases and situations completely different to his."

It said Randal's testimony was relevant and admissable. The decision paves the way for the court to order that Randal appear in The Hague. Although the tribunal cannot physically force him to testify, its orders are binding under international law. It could request that authorities in France, where Randal lives, assist in carrying out the order.

The Post said it was considering an appeal.

The judges agreed with Randal that journalists should have the right to invoke professional privileges to protect sources, but said "this fundamental question does not arise in Randal's case" because he published the source's name and had no additional confidential material.

It said press freedom needed to be weighed against law on a case-by-case basis to ensure that "the course of justice in not impeded by the withholding of evidence."

"Journalists should not be subpoenaed unnecessarily," the ruling said. Court examinations, it added, should "not unduly hamper, obstruct or otherwise frustrate the vital role of news gathering."

Prosecutors say Randal has information that "goes to the heart of the case" of ethnic cleansing against two Bosnian Serbs accused of war crimes during the 1992-95 Bosnian conflict.

Randal was summoned in the case of Radoslav Brdjanin and Momir Talic, who are accused of the persecution and expulsion of more than 100,000 non-Serbs during the Bosnian war. The defendants have pleaded innocent to 12 counts of war crimes, including genocide.

In an article published Feb. 11, 1993, Randal quoted Brdjanin, whom he described as a Serbian housing official, as advocating the expulsion of non-Serbs from the Bosnian city of Banja Luka.

The article read: "He (Brdjanin) said he believes the 'exodus' of non-Serbs should be carried out peacefully, so as to 'create an ethnically clean space through voluntary movement.' Muslims and Croats, he said, '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 Washington Post said it recognized the need to gather evidence against accused war criminals, but that forcing reporters to testify was against the long-term public interest.

The Post quoted its managing editor, Steve Coll, as saying yesterday that "the last couple of years have made clearer than ever how hard is the work of independent correspondents in combat zones where many combatants are not formally aligned with any government and suspicious of the motives of the media."

Coll expressed concern that warring parties would view journalists "as instruments of some faraway court or power and deal with them as such" if such subpoenas were allowed, the Post said. The newspaper said it was deciding whether to appeal.

But the court said while journalists played an important role in uncovering potential war crimes, granting them a blanket right to refuse to testify could render their work "potentially useless."

Update

News organizations oppose war-crimes tribunal subpoena
New York Times, AP, CNN, BBC support Washington Post's resistance to demand that reporter testify in Yugoslavia.  08.27.02