20 Comm. Law. 10 (2002-2003)
International Tribunal Recognizes Qualified Privilege for War Correspondents; Lieberman, Eric; Campbell, Fiona

handle is hein.journals/comlaw20 and id is 110 raw text is: International Tribunal Recognizes Qualified
Privilege for War Correspondents
ERIC LIEBERMAN AND FIONA CAMPBELL

Jonathan Randal, a former veteran war
correspondent for the Washington Post,
recently engaged in a battle of his own
by fighting a subpoena from the
International Criminal Tribunal for the
former Yugoslavia (ICTY) that sought
testimony about his interview with an
alleged Serbian war criminal. An inter-
national coalition of media companies
and press freedom groups supported
Randal's challenge, although some re-
spected journalists disagreed with his
position. For the first time, the U.N. war
crimes tribunal-established after press
coverage of atrocities in the former
Yugoslavia-was forced to confront an
issue of fundamental importance to the
international criminal justice system:
whether war correspondents can assert a
privilege in the public interest to not
testify about their newsgathering.
In December 2002, the ICTY's high-
est court handed Randal and his support-
ers a resounding victory when a panel of
five international judges established a
qualified privilege that allows war corre-
spondents to not testify about their news-
gathering in conflict zones. The ICTY
will compel war correspondents to testify
only in those exceptional cases in which
the court is satisfied that the evidence
sought is of direct and important value in
determining a core issue in the case and
cannot reasonably be obtained else-
where.' As the case progressed through
The Hague tribunal, journalists in
Europe and the United States publicly
debated their responsibilities with regard
Eric Lieberman is associate counsel of
the Washington Post in Washington,
D.C., and Fiona Campbell is a solicitor
with Finers Stephens Innocent in
London. Ms. Campbell and Mark
Stephens, also of Finers Stephens
Innocent, acted as solicitors on
Jonathan Randal's behalf The authors
express their appreciation to Steven
Powles for his help with the article. Mr.
Powles and Geoffrey Robertson QC,
both of Doughty Street Chambers, were
Randal's London-based attorneys.

to the prosecution of war criminals-a
debate that is likely to continue as the
U.N's permanent International Criminal
Court opens for business. Whether the
permanent court will follow the ICTY's
lead remains to be seen.
Background
In early 1993, Randal covered Bosnia
for the Washington Post. He and a col-
league from another newspaper who
spoke fluent Serbo-Croat drove through
Serb-held territory to Bosnia's second
largest city, Banja Luka, where they in-
terviewed housing minister Radoslav
Brdjanin about his involvement in ex-
pelling non-Serbs from the region. In
Randal's Post article about the inter-
view, Brdjanin was quoted as advocat-
ing the peaceful exodus of non-Serbs
so as to create an ethnically clean
space through voluntary movement.2
Nearly eight years later, the ICTY's
Office of the Prosecutor (OTP) contacted
Randal, who was living in Paris after
having retired from the Post. The ICTY
had charged Brdjanin with genocide,
crimes against humanity, and war
crimes. The prosecution, having seen
Randal's article, wanted him to write a
statement and testify before the tribunal
about the accuracy of Brdjanin's quota-
tions and other aspects of the interview.
Randal met with a prosecution investiga-
tor and signed a statement, but expressed
reluctance as a journalist about testify-
ing. When the prosecution subsequently
asked him to appear in court, Randal re-
fused. In January 2002, a French court
officer arrived on his doorstep to deliver
a subpoena from the ICTY.
Randal's former employer retained
lawyers in London and Paris, who
promptly raised two evidentiary issues
with the OTP. Randal could not give di-
rect evidence that Brdjanin's quotations
were accurate because he does not
speak Serbo-Croat and relied on an in-
terpreter. Furthermore, the article could
be admitted without Randal's testimony
because the ICTY admits hearsay.
When defense counsel objected to being

denied an opportunity to cross-examine
Randal, Judge Carmel Agius (Malta)
decided to assess the relevance of the
testimony after the fact:
[W]hat is important for this Chamber is not
whether the document itself ought to be admitted
into evidence or not. Rather, it is the probative
value that it can receive that is important. We
may end up in a situation whereby we would
have heard [Randal] but come to the conclusion
that for all intents and purposes, his evidence is
not going to be of any importance to us. But I
would still think that we ought to go ahead.'
Randal then filed a motion to have
the subpoena set aside.
Randal Asserts Need
for Qualified Privilege
Randal argued that the ICTY should
recognize a qualified (rather than ab-
solute) privilege for war reporters to not
testify about their newsgathering based
on the long-term public interest in the
free flow of information from conflict
zones.' If war correspondents were rou-
tinely made to testify, according to this
rationale, potential sources would per-
ceive them as an investigative arm of a
judicial system and refuse to talk or
grant access. Moreover, the personal
safety of war correspondents, who are
already endangered, would be further
jeopardized if they become identified as
potential witnesses.
Randal submitted affidavits from Bo
Jones, publisher of the Washington
Post; Roy Gutman, the Pulitzer Prize-
winning reporter from Newsday who
covered the ethnic cleansing in Bosnia-
Herzegovina and provided the first doc-
umented accounts of Serb-run concen-
tration camps; Philip Knightley, best
known for his 1975 book The First
Casualty: The War Correspondent as
Hero, Propagandist, and Myth Maker
from the Crime to Kosovoi; and Aidan
White, long-time General Secretary of
the International Federation of
Journalists, the world's largest profes-
sional group of reporters.
Randal also garnered legal support
for the privilege from a divergent group
of international sources:

10 ED Communications Lawyer El Winter 2003

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