The Prosecutor v. Radoslav Brdjanin & Momir Talic - Case No. IT-99-36-AR73.8

"Decision on Interlocutory Appeal"

11 December 2002
Judges Jorda [Presiding], Shahabuddeen, Gunëy, Gunawardana and Meron)

Procedural Background

· During the pre-trial conference on 21 January 2002, the Office of the Prosecutor sought to introduce into evidence a newspaper article (hereinafter the “Article”) by Jonathan Randal which appeared on 11 February 1993 in the Washington Post and which contains statements attributed to the Accused Radoslav Brdjanin.¹

· On 28 January 2002, the Prosecution made an oral request to the Trial Chamber to issue a subpoena requiring him to give evidence.² Randal had refused to testify due to his position as a journalist even though he had given a statement to the Prosecution.

· The Trial Chamber, on 29 January 2002 and pursuant to Rule 54 of the Rules of Procedure and Evidence,³ issued a Confidential Subpoena directing Randal to appear before the Trial Chamber to give evidence.

· On 9 May 2002, Randal filed a written submission to set aside the Confidential Subpoena.⁴

· On 7 June 2002 the Trial Chamber rendered its Decision (hereinafter the “Impugned Decision”), whereby it refused to recognise a testimonial privilege for journalists when no issue of protecting confidential sources was involved and upheld the Subpoena.⁵

· On 14 June 2002, the Appellant sought certification for leave to appeal from the Trial Chamber’s Decision.⁶ The Trial Chamber granted the certification on 19 June 2002.⁷ On 26 June 2002, the Appellant filed the Appeal.

· On 1 August 2002, pursuant to Rules 74 and 107 of the Rules, the Appeals Chamber granted the request of 34 media companies and associations of journalists to file a brief as Amici curiae supporting the Appellant, which was filed on 16 August 2002.⁸

· On 3 October 2002, the Appeals Chamber heard the arguments of the parties and the Amici curiae.

The Decision

The Appeals Chamber allowed the Appeal, reversed the Impugned Decision, and set aside the Subpoena.

The Reasoning

The Impugned Decision and the Submissions of the Parties and the Amici curiae

The Impugned Decision

While acknowledging that “journalists reporting on conflict areas play a vital role in bringing to the attention of the international community the horrors and realities of the conflict”⁹ and that they should not be “subpoenaed unnecessarily”,¹⁰ the Trial Chamber took the view that in the case of already published materials and already identified sources, compelling journalists poses only a minimal threat to the news gathering and news reporting functions. Consequently it held that in order to determine whether to issue a subpoena to compel the testimony of a journalist concerning already public materials and sources, it is sufficient that the testimony be “pertinent” to the case.¹¹ The Trial Chamber did consider whether requiring the journalist to testify would place him in physical danger, but found in the present case that he faced no prospect of harm, since he is retired and lives in France.

The Appellant

Seeking the reversal of the Impugned Decision and the setting aside of the Subpoena , the Appellant submitted that the Trial Chamber had erred in law by not recognising a qualified privilege for journalists, and had erred so as to the facts when it found the Appellant’s testimony to be pertinent to the Prosecution’s case. In the Appellant’s view such a privilege is warranted in order to safeguard the ability of journalists to investigate and report effectively from areas in which crimes take place.

In the Appellant’s view a Trial Chamber should issue a subpoena only if it determines that compelling the journalist to testify would provide admissible evidence that: (1) is “of crucial importance” to determining a defendant’s guilt or innocence ; (2) cannot be obtained “by any other means or from any other witness”; (3) will not require the journalist to breach any obligation of confidence; (4) will not place the journalist, his family, or his sources in reasonably apprehended personal danger; and (5) will not serve as a precedent that will “unnecessarily jeopardise the effectiveness or safety of other journalists reporting from that conflict zone in the future.”

The Amici curiae

According to the Amici curiae, a Trial Chamber should not issue a subpoena to compel the testimony of a journalist unless the Trial Chamber determines that: (1) the testimony is essential to the determination of the case; and (2) the information cannot be obtained by any other means. For the testimony to be essential, “its contribution to the case must be critical to determining the guilt or innocence of a defendant .”

Applying this test, the Amici curiae asserted that the Appellant should not be compelled to testify. In their view his testimony is not absolutely essential to the case. Even if it were, the Prosecution has not demonstrated that his testimony is the only means of obtaining the same information.

The Prosecution

The Prosecution submitted that the Trial Chamber: (i) correctly declined the Appellant’s invitation to create a precise journalistic privilege; and (ii) correctly determined, on the facts of this case, that the Appellant should be compelled to testify.

It argued inter alia that, whatever beneficial effects a privilege for the protection of confidential sources and confidential information may have in promoting vigorous reporting and thus ultimately the cause of international justice, no such benefits accrue from a privilege protecting testimony concerning published materials and openly identified sources. According to the Prosecution, what creates the admittedly significant risks for journalists operating in war zones – of physical harm and of loss of access to sources – is the publication of their stories exposing the conduct of parties to the conflict and not the later possibility that they might be called to testify about matters they have already revealed to the public in their stories.

The Prosecution argued that the Appeals Chamber should endorse the approach of the Trial Chamber, which, in its view, was to balance “the legitimate interests of journalists” against “the interests of the international community and the victims of crime in ensuring the availability of all relevant and probative evidence” and, when appropriate “ the interest of the Accused in exercising his right to examine witnesses against him.”

Further, the Prosecution argued that under the test applied and even under the tests proposed by the Appellant and the Amici curiae, the Trial Chamber would still have been correct to issue a subpoena for the Appellant’s testimony since the statements by the Accused in the Article are essential to the Prosecution’s case¹² and the evidence at issue being unavailable from other sources.¹³

Preliminary issues

Definition of “war correspondents”

The Appeals Chamber noted at the outset that the case was solely concerned with war correspondents, as it is the particular character of the work done and the risks faced by those who report from conflict zones that it is at stake in the present case. It defined “war correspondents” as “individuals who, for any period of time , report (or investigate for the purposes of reporting) from a conflict zone on issues relating to the conflict”¹⁴ and stated that this Decision concerns only this group.

Compelled testimony by war correspondents: a novel issue

The Appeals Chamber then turned to the issue of compelled testimony by war correspondents “before a war crimes Tribunal.”¹⁵ This is a novel issue for which “[t]here does not appear to be any case law directly on point”.¹⁶ Nor is there “much guidance” in the Statute or the Rules. The Appeals Chamber emphasised that Rule 54 of the Rules allows a Trial Chamber to issue a subpoena when it is “necessary for the purpose of an investigation or for the preparation or conduct of the trial”, but that the discretion of the Trial Chamber is “not unfettered”, as subpoenas “should not be issued lightly, for they involve the use of coercive powers and may lead to the imposition of a criminal sanction”.¹⁷

The admissibility and potential value of the evidence sought

The Appeals Chamber made clear that in order to issue a subpoena, a Trial Chamber must first of all take into account the admissibility and the potential value of the evidence sought to be obtained: under Rule 89(C) of the Rules, a Trial Chamber ‘may admit any relevant evidence which it deems to have probative value, and under Rule 89(D) may “exclude evidence if its probative value is substantially outweighed by the need to ensure a fair trial.”¹⁸ Second, the Trial Chamber may “need to consider other factors such as testimonial privileges”, such as the attorney-client privilege under Rule 97,¹⁹ or the immunity from testifying granted to employees of the International Committee of the Red Cross.²⁰

The subsidiary questions underlying the issuance of a subpoena to war correspondents

The Appeals Chamber considered that the basic legal issue raised three subsidiary questions which it considered in turn. Is there a public interest in the work of war correspondents? If so, would compelling war correspondents to testify before a tribunal adversely affect their ability to carry out their work? If so, what test is appropriate to balance the public interest in accommodating the work of war correspondents with the public interest in having all relevant evidence available to the court and, where it is implicated, the right of the defendant to challenge the evidence against him?

The public interest in the work of war correspondents

The Appeals Chamber clearly found, as the Trial Chamber had expressly recognised , that there is a public interest in the work of war correspondents: “[b]oth international and national authorities support the related propositions that a vigorous press is essential to the functioning of open societies and that a too frequent and easy resort to compelled production of evidence by journalists may, in certain circumstances , hinder their ability to gather and report the news.”²¹ It expressed the view that “society’s interest in protecting the integrity of the newsgathering process is particularly clear and weighty in the case of war correspondents ”, and mentioned the vital role of war correspondents in keeping the public informed and providing leads to the International Tribunal.

The Appeals Chamber also found additional support in “the right to receive information that is gaining increasing recognition within the international community”,²² as enshrined in Article 19 of the Universal Declaration of Human Rights,²³ “in all the main international human rights instruments”,²⁴ and, as expressed by the European Court of Human Rights.²⁵

It concluded that the recognition of the important interest served by the work of war correspondents “does not rest on a perception of war correspondents as occupying some special professional category” but is rather supported by the fact that “vigorous investigation and reporting by war correspondents enables citizens of the international community to receive vital information from war zones”.²⁶

Compelling war correspondents to testify and protection of the newsgathering function

While acknowledging that “it is impossible to determine with certainty whether and to what extent the compelling of war correspondents to testify before the International Tribunal would hamper their ability to work”, the Appeals Chamber made clear that “it is not a possibility that can be discarded lightly, as the Trial Chamber found , simply because the evidence sought concerned published information and not confidential sources”. In its view “the amount of protection that should be given to war correspondents from testifying before the International Tribunal is directly proportional to the harm that it may cause to the newsgathering function”.²⁷ It underlined that “if war correspondents were to be perceived as potential witnesses for the Prosecution, two consequences may follow. First, they may have difficulties in gathering significant information because the interviewed persons, particularly those committing human rights violations, may talk less freely with them and may deny access to conflict zones. Second, war correspondents may shift from being observers of those committing human rights violations to being their targets, thereby putting their own lives at risk.”²⁸ It concluded by stating that it “will not unnecessarily hamper the work of professions that perform a public interest”.²⁹

The appropriate test for the issuance of subpoenas to war correspondents

The Appeals Chamber considered that in order to decide whether to compel a war correspondent to testify before the International Tribunal, a Trial Chamber “must conduct a balancing exercise between […] the interest of justice in having all relevant evidence put before the Trial Chambers for a proper assessment of the culpability of the individual on trial and […] the public interest in the work of war correspondents, which requires that the newsgathering function be performed without unnecessary constraints so that the international community can receive adequate information on issues of public concern.”³⁰ The Appeals Chamber found that the test of “pertinence” applied by the Trial Chamber is insufficient. It therefore held that “in order for a Trial Chamber to issue a subpoena to a war correspondent a two-pronged test must be satisfied. First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case. Second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere.”³¹

The Appeals Chamber did not consider the submissions of the parties on the second ground of appeal, that is, the application of the proper legal test to the facts . It considered that it is the role of the Trial Chamber to apply the principles it has set to the particular circumstances of the case.³²

Separate opinion of Judge Shahabuddeen

Judge Shahabuddeen agreed with the decision of the Appeals Chamber that war correspondents have a qualified privilege and they may be required to testify in limited circumstances but had “a difficulty over the operation of part of the test used by the Appeals Chamber for determining whether a subpoena may be issued to them”. He noted that the Appeals Chamber was not satisfied with the test of the Trial Chamber that the proposed evidence be “pertinent” to the case. In his view it is “reasonably clear ” that the Trial Chamber considered that the proposed evidence was “advantageous ” and “to the point” in determining core issues in a serious criminal case and that therefore it satisfied the substance of the test (first prong) adopted by the Appeals Chamber. As regards the second prong of the test, however, Judge Shahabuddeen expressed that it was not satisfied.

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1. Jonathan C. Randal, “Preserving the Fruits of Ethnic Cleansing; Bosnian Serbs, Expulsion Victims See Process as Beyond Reversal”, Washington Post, Feb. 11, 1993, p. A34. In this article Brdjanin was quoted as saying inter alia that “those unwilling to defend [Bosnian Serb territory] must be moved out” so as “to create an ethnically clean space through voluntary movement.” According to the article, Brdjanin said that Muslims and Croats “should not be killed, but should be allowed to leave – and good riddance.”
2. The Prosecution claimed that the Article was relevant to establish that the Accused possessed the intent required for several of the crimes charged.
3. Rule 54 (General Rule) At the request of either party or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, subpoenas, warrants and transfer orders as may be necessary for the purposes of an investigation or for the preparation or conduct of the trial.
4. Brdjanin & Talic, IT-99-36-T, Written Submissions on Behalf of Jonathan Randal to Set Aside “Confidential Subpoena to Give Evidence” Dated 29 January 2002, 9 May 2002.
5. Brdjanin & Talic, IT-99-36-T, Decision on Motion to Set Aside Confidential Subpoena to Give Evidence, 7 June 2002, Judicial Supplement No. 34.
6. Brdjanin & Talic, IT-99-36-T, Application for Certification from Trial Chamber to Appeal “Decision on Motion to Set Aside Confidential Subpoena to Give Evidence”, 14 June 2002.
7. Brdjanin & Talic, IT-99-36-T, Decision to Grant Certification to Appeal the Trial Chamber’s “Decision on Motion to Set Aside Confidential Subpoena to Give Evidence”, 19 June 2002.
8. Brdjanin & Talic, IT-99-36-AR73.9, Décision relative à la requête aux fins de prorogation de délai et autorisant à comparaître en qualité d’Amici curiae,1 August 2002.
9. Impugned Decision, para. 25.
10. Ibid., para. 27.
11. Ibid., para. 32.
12. The Prosecution argued that they constitute direct evidence of the intent required for the establishment of some of the offences with which he is charged.
13. According to the Prosecution the only other witness to the Accused’s statements was the journalist who served as an interpreter for the Appellant.
14. Para. 29.
15. Para. 30. The present ruling is concerned only with war correspondents who have refused to testify and are compelled to do so. War correspondents have previously voluntarily testified at the International Tribunal: E.G. Martin Bell (BBC), Jacky Rowland (BBC), and Ed Vulliamy (The Observer / Guardian).
16. Para. 30.
17. Para. 31.
18. Para. 32.
19. Rule 97 of the Rules states that “all communications between lawyer and client shall be regarded as privileged, and consequently not subject to disclosure at trial, unless: (i) the client consents to such disclosure; or (ii) the client has voluntarily disclosed the content of the communication to a third party, and that third party then gives evidence of that disclosure.”
20. Simic, IT-95-9-PT, Decision on the Prosecution Motion under Rule 73 for a Ruling Concerning the Testimony of a Witness, 27 July 1999, Judicial Supplement No. 7.
21. Para. 35.
22. Para. 37.
23. Article 19 of the Universal Declaration of Human Rights states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
24. Para. 37. See: Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 3 September 1953; Article 19 of the International Covenant on Civil and Political Rights of 23 March 1976; Article 13 of the American Convention on Human Rights of 18 July 1978; and in Article 9(1) of the African Charter on Human and Peoples Rights of 26 June 1981.
25. Fresso and Roire v. France, Judgement of 21 January 1999, ECHR, para. 51: “Not only does the press have the task of imparting information and ideas on matters of public interest: the public also has a right to receive them”.
26. Para. 38.
27. Para. 41.
28. Para. 43.
29. Para. 44.
30. Para. 46.
31. Para. 50.
32. If the Prosecution (or the Defence) wish that the Appellant be subpoenaed to testify before the Tribunal, it will have to submit a new application before the Trial Chamber “to be considered in the light of the principles set out in the present decision” (para. 55).