NMU THE HAGUE Confidentiality/Privilege May 15, 2002

U.S. reporter fights subpoena from U.N. war crimes tribunal

Lawyers for The Washington Post argued that the absence of a qualified privilege for journalists from testimony subjects them to safety concerns in conflict zones.

Lawyers for The Washington Post last week pleaded to a United Nations war crimes tribunal to grant a former reporter a reprieve from testifying in a case in the fear that forcing him to testify against a suspected war criminal could set a dangerous precedent for journalists in wartime.

“We said that if you routinely subpoena reporters, they are going to get less information about what’s going on because people are going to be reluctant to tell them about what is happening in war zones,” said Eric Lieberman, an attorney for the Post. “If they are perceived as a potential witness, their own personal safety is in jeopardy. There could be a temptation to eliminate them as a witness.”

The tribunal issued a subpoena for Jonathan Randal, a retired Post correspondent, to testify against Radoslav Brdjanin, a Bosnian Serb charged with genocide and deportation of non-Serbs during the Bosnian war. Prosecutors sought to introduce a 1993 article written by Randal that quoted Brdjanin.

But Brdjanin’s attorneys said they would only accept the article as evidence if they could cross-examine Randal himself. Randal, now an author based in Paris, declined to testify.

Before Randal contested the subpoena, a number of European reporters and documentary filmmakers willingly testified before the war crimes tribunal based in The Hague. No American reporters have agreed to testify, but Randal was the first to receive a subpoena.

On May 10, attorneys for the Post asked the tribunal to draft rules protecting journalists from testifying except under extreme circumstances. Presently, the tribunal exempts lawyers, court employees and Red Cross workers from testifying.

“The tribunal has established a privilege for Red Cross workers on the theory that their independence needs to be preserved if they are going to do the work they do,” Lieberman said. “We argued that an extension of that sort of privilege should go to journalists because they are similar to aid workers in that they serve as independent observers and pass on valuable information on what happens in conflict zones.”

Lieberman noted, too, that the very creation of the tribunal depended in part on journalists’ accounts of ethnic cleansing in Bosnia.

A ruling in this case could set a strong precedent in future tribunals, particularly for the new International Criminal Court which is scheduled to sit for the first time in July.

Lieberman said the Post asked the court to consider granting a qualified privilege for journalists, compelling their testimony only if it is crucial to determining the guilt or innocence of a defendant and could not be secured from other sources.

“We’re not asking for anything extreme,” Lieberman said. “We’re just asking them to take a principled approach.”


© 2002 The Reporters Committee for Freedom of the Press

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