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MEDIA
The Hague lays off journalists, for now
BY RICHARD BYRNE

War correspondents all over the world can exhale — a little bit. Last week, the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), located in The Hague, set aside a subpoena that the international court’s trial branch had issued to former Washington Post reporter Jonathan Randal. The ICTY sought Randal’s testimony about an interview that he’d conducted with Radoslav Brdjanin — the former Bosnian Serb vice-president now on trial at the ICTY for genocide, crimes against humanity, and violations of the Geneva Convention. Prosecutors then subpoenaed Randal — at the behest of Brdjanin’s lawyers — when he reneged on his earlier willingness to cooperate with investigators. (See " Don't Ask, Don't Tell, " News and Features, September 26.)

Last spring, the court hearing Brdjanin’s case also heard Randal’s appeal to have his subpoena quashed. In June, that court refused to set it aside, prompting a vast armada of US news-media organizations (with some international press-safety committees and mainly UK-based allies) to challenge the ICTY’s nonexistent policy on compelling testimony from reporters.

In many countries — including the United States and much of Western Europe — safeguards of varying strengths have been enacted to prevent reporters from becoming a third arm of the law. The refusal of the ICTY to set aside the Randal subpoena shocked many in the US media, who benefit from what are perhaps journalism’s strongest " shield laws. " The outrage over the ICTY’s lack of policy on journalists — and its refusal to use Randal’s case to create such a shield — led over 34 news organizations (including all the major US networks and newspaper chains) to file an amicus curiae brief along with Randal’s immediate appeal to the ICTY’s appeals court.

The Appeals Chamber has found that for many in the US media — as indicated by Randal’s appeal and the amicus brief in support of it — a " chilling effect " on reporting from war zones would arise from the knowledge that working reporters may later become courtroom witnesses. " Compelling war correspondents to testify before the International Tribunal on a routine basis, " noted the court, " may have a significant impact upon their ability to obtain information and thus their ability to inform the public. "

As a result, the Appeals Court formulated a " two-pronged " test that it argues will settle the issue. Journalists may be compelled to testify when " the evidence sought is of direct and important value in determining a core issue in the case " and when those seeking the subpoena " demonstrate that the evidence sought cannot reasonably be obtained elsewhere. " The Appeals Court also formally set aside Randal’s subpoena on the basis of this test. Further, the court decided to cast its net narrowly — separating " war correspondents " from the larger pool of " journalists " for consideration in the ruling.

The ruling was indeed a victory for the press. There are now guidelines — however poorly defined — for subpoenaing war correspondents. Yet the fuzziness of the language (the courts will determine what is a " direct and important value " ) and the exclusion of the greater herd of " journalists " as a whole from this treatment is sure to raise new conflicts. For instance, when journalists investigate Al Qaeda in Pakistan or Jordan, are they " war correspondents? " Most in the American press would argue that they are, but who knows how the ICTY would see it? What we do know is that given the fact that journalists — many from the Balkans — have testified willingly at the ICTY in recent months, the issue of putting journalists in the dock isn’t over by a long shot, despite these clarifications.

Issue Date: December 19 - 26, 2002
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