Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya
Mr. Hans Holthuis
7 June 2002
DECISION ON MOTION TO SET ASIDE CONFIDENTIAL SUBPOENA TO GIVE EVIDENCE
The Office of the Prosecutor:
Ms. Joanna Korner
Mr. Andrew Cayley
Counsel for the Accused:
Mr. John Ackerman and Mr. Milan Trbojevic, for Radoslav Brdjanin
Mr. Slobodan Zecevic and Ms. Natacha Fauveau-Ivanovic, for Momir Talic
Counsel for Jonathan Randal:
Mr. Geoffrey Robertson and Mr. Steven Powles
TRIAL CHAMBER II (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”) is seised of the “Written Submissions on Behalf of Jonathan Randal to Set Aside Confidential Subpoena to Give Evidence”, of 8 May 2002 (“the Motion”).
1. On 21 January 2002 during the pre-trial conference, the Office of the Prosecutor (“Prosecution”) sought to introduce in evidence a newspaper article written by Jonathan Randal (“Randal”), a journalist.1 The article (“Randal’s Article”), which appeared on 11 February 1993 in the Washington Post, contains quotes attributed to the Accused Radoslav Brdjanin (“Brdjanin”) on the plight of the non-Serb population in Banja Luka and surroundings. The Prosecution informed that Randal, who had given a statement to the Prosecution, had thereafter been contacted and refused to appear to give evidence due to his position as a journalist.2 Brdjanin objected to the admission into evidence of Randal’s Article and of his statement, and took the position that , if they were admitted, he would require that Randal attend for cross-examination .3 As a result, the Prosecution on 28 January 2002 made an oral request to the Trial Chamber for a subpoena to give evidence addressed to Randal.4
2. On 29 January 2002, the Trial Chamber pursuant to Rule 54 of the Rules of Procedure and Evidence (“Rules”), issued a Confidential Subpoena directing Randal to appear before the Trial Chamber to give evidence (“Subpoena”).5
3. On 26 February 2002, the Prosecution invited Brdjanin to reconsider his request for Randal’s attendance for cross-examination, on the grounds that Randal would apply to set aside the Subpoena and would argue that his interview with Brdjanin had been conducted through the interpreting services of another journalist (“X”).6 Brdjanin responded that it was his submission that X was hostile to him, and therefore that what was written in Randal’s Article did not correspond with Brdjanin’s words .
4. The parties made further submissions on the admissibility of Randal’s Article and his testimony in the course of the hearings of 28 February 2002 and 1 March 2002 . Brdjanin had earlier objected to any newspaper article being admitted into evidence to prove a fact at issue.7 Brdjanin also argued that Randal’s Article was inadmissible because it was irrelevant, as it referred to statements allegedly made by Brdjanin outside the period relevant to the Prosecutor’s Corrected Version of Fourth Amended Indictment (“Indictment”).8 Further, he submitted that it ought to be X who should, if necessary, give evidence before the Trial Chamber about the interview with Brdjanin.9 The Prosecution had earlier conceded that X embodied the best evidence to be called , but submitted that he refused to testify and that continuing efforts were being made to persuade him to testify.10 The Prosecution acknowledged that the interview with Brdjanin had taken place just outside the period relevant to the Indictment. It submitted, however, that the interview showed Brdjanin’s intent to rid the territory of the non-Serb population , which according to the Prosecution was the reason behind the commission of the crimes charged in the Indictment.11 The Prosecution argued further that the position with regards to Randal and to X was effectively no different from “an investigator seeing a witness and taking a statement through an interpreter”, and that this was a matter that should go to the weight to be ascribed to Randal’s Article and his testimony rather than to their admissibility.12
5. Having considered the submissions by the parties, the Trial Chamber rendered an oral decision that Randal’s Article and his testimony were admissible. The Trial Chamber ruled that Randal’s evidence on the interview with Brdjanin was relevant, because on its face it “could throw a light on the possible frame of mind that the Accused may have had in 1992, April to December”.13 The Trial Chamber reasoned that, if in the course of Randal’s evidence it transpired that what was said to him or to X referred exclusively to events outside the period relevant to the Indictment, then the evidence would be excluded.14 The Trial Chamber expressed its disposition to protect journalists and the confidentiality of their sources,15 and, in arriving at its decision, took into consideration that, in his statement to the Prosecution , Randal had affirmed that if compelled to testify, he would be in a position to ascertain that the quotes accredited to Brdjanin were true and accurate.16 It also took into consideration that, as was apparent from his statement to the Prosecution, Randal was able to provide the Trial Chamber with information beyond that which had been provided to him by X, as for example information regarding Brdjanin’s demeanour during the interview.17 Finally, the Trial Chamber was aware that, if X were not called to give evidence , a position might obtain whereupon the Trial Chamber would have heard Randal and arrived at the conclusion that, given the circumstances in which the interview with Brdjanin was conducted, it should give no weight to the Randal’s Article, or to his evidence.18
6. On 18 March 2002 the Trial Chamber in closed session granted the Prosecution leave to disclose to Randal the relevant transcripts of private and closed sessions where this issue had been discussed, with the proviso that these would not be further disclosed by him.19
7. Randal filed his Motion on 8 May 2002. The Prosecution filed confidentially its “Prosecution’s Response to Written Submissions on Behalf of Jonathan Randal to set aside Confidential Subpoena to Give Evidence” on 9 May 2002 (“Prosecution’s Response ”). The Trial Chamber on 10 May 2002 heard Randal’s oral submissions and the Prosecution’s response to these.
8. Randal asserts that the Subpoena should not have been issued as a matter of law or on the factual material then before the Trial Chamber, and, in any event, applies for the Subpoena to be set aside.20
9. Randal does not contest the Tribunal’s power to seek the attendance of witnesses by way of subpoena. Randal argues, however, that the Tribunal’s power to subpoena witnesses pursuant to Rule 54 is not absolute, but finds its limitation in public policy concerns, such as the lawyer-client privilege in Rule 97.21 He refers to Tribunal’s decisions to support his submission that certain categories of people, namely, state officials, ICRC officials, Tribunal functionaries and the UNPROFOR commander-in-chief, are excluded from being compelled to testify before the Tribunal.22
10. According to Randal, therefore, the Tribunal’s power to subpoena must be tailored to the recognised public interest privilege of, inter alia, journalists, to whom a strong presumption against requiring them to testify pursuant to a compulsory process should apply.23 Similarly , Randal submits that Rule 73 of the Rules of Procedure and Evidence of the International Criminal Court (“ICC Rules”) does not exclude the recognition of a journalist’s privilege.24
11. Randal argues that the public interest served by such journalistic privilege lies in the “outstanding benefits for international criminal justice” that derive from media coverage in combat zones -namely, that it provides important information about international conflicts, including alerting to the commission of war crimes, and that it provides evidential material for prosecutorial investigation of war crimes.25 These benefits would be curtailed if journalists were routinely compelled to give evidence before international criminal courts against those they have observed and/or interviewed. According to Randal, the consequences of routine compellability would be that: (i) journalists’ independence would be undermined and journalists would have fewer opportunities to conduct interviews with officials with superior authority, particularly in conflicts that are ongoing, (ii) journalists would as a collective profession be put at risk of greater harm and danger, including exposing their sources to such risk and, as a result therefore, (iii) the amount of information that conflict zone reporters are able to produce, including specifically information about possible crimes against humanity, would tend to dry up.26
12. In view of the adverse consequences of routine compellability, Randal calls for a qualified privilege for journalists not to be compelled to testify about their newsgathering before international criminal courts unless certain conditions are made out.27 Randal is therefore not asserting an absolute immunity.28 In the alternative, Randal calls for the creation of a presumption against compulsory process for journalists except in extraordinary situations.29 Throughout his Motion and oral submissions, Randal uses the terms “public interest and qualified privilege” and “presumption” or “presumptive right” interchangeably .30 In Randal’s view, judicial discretion is a “slippery slope”.31 In his oral submissions, Randal made explicit that the privilege or presumption he argued for was “only related to the journalist’s work in the conflict zone”, and that it would still allow journalists to testify voluntarily.32
13. To support the recognition by the Trial Chamber of this qualified privilege, Randal sets out the legal safeguards in place for the protection of journalists, such as Article 79 of Protocol I to the Geneva Conventions33 and Article 10 of the European Convention on Human Rights.34 Furthermore, he emphasises that the public-watchdog role of the press has been recognised by the European Court of Human Rights in, inter alia, Goodwin v United Kingdom,35 and by the Inter-American Court of Human Rights.36 Randal also submits that a qualified journalistic privilege has been recognised in a number of domestic settings, and sets out the position in domestic law in the United Kingdom and in the United States, though he is aware that the Tribunal is not bound by national rules of evidence.37
14. Randal submits that the strong presumption against compelling journalists to testify can only be overcome if the Prosecution satisfies a “multi-part test that responds to and balances the underlying public policy considerations, including the need for and value of the testimony of the journalist”.38 Thus, Randal defines the only circumstances under which a journalist should be compelled to testify before an international criminal court.39 These are, inter alia, where the court is satisfied that the unwilling journalist , if forced to testify, would provide admissible evidence that is of crucial importance to its determination of a defendant’s guilt or innocence, and that the giving of this evidence would not put the journalist, his family or sources in any reasonably apprehended personal danger.40 Even if the latter requirement is of difficult application to Randal, who is now retired , Randal argues that, subject to these criteria, the evidence that he could give before the Trial Chamber is insufficient to compel him to testify.41 Further, Randal submits that the relief he requests could not be satisfactorily addressed through establishing measures to protect him as a witness, but fails to furnish a convincing explanation why this should be so.42
15. In the alternative, Randal submits that if the Trial Chamber were to reject the argument that he was entitled to a qualified journalistic privilege or a presumption against being compelled to testify, then the Subpoena should be set aside on the particular facts of this case. Randal argues that the compulsory process to seek attendance of a potential witness was initiated and issued in the Trial Chamber without any enquiry as to its necessity.43 Randal submits further that the Prosecution is not arguing that Randal’s evidence is vital to establish Brdjanin’s guilt, and that, in fact, his evidence is not crucial or even significant to either the Prosecution or the Defence.44 In addition, Randal argues that his evidence is not probative so as to satisfy Rule 89(C): Randal, who moreover is not a voluntary witness, can only furnish hearsay evidence against Brdjanin, as he did not speak to Brdjanin himself but through X.45 Accordingly, Randal’s evidence “cannot, in logic or common sense, be probative of what the defendant said” unless X gives evidence as well.46 Alternatively, according to Randal, the Prosecution would not be able to surmount the burden of proving that Randal’s evidence is so crucial that it must be obtained through compulsion when it is unable to secure the voluntary testimony of X and declines to apply for the Trial Chamber to issue him with a subpoena pursuant to Rule 54.
16. The Prosecution responds that on the facts of the case and in light of available precedents, there is, contrary to Randal’s assertions, no danger “that publicly important information will become unavailable”, and that there is no legal basis for the privilege asserted by Randal.47
17. Further, the Prosecution contends that Randal mischaracterises the proceedings by which the Trial Chamber determined to issue Randal with the Subpoena, and that the admissibility of both Randal’s Article and his testimony were adequately established in the course of the numerous hearings when this matter was addressed.48 The Prosecution also contests Randal’s assertion that his testimony would have no probative value. It contends that Randal’s Article goes directly to the heart of the case against Brdjanin.49 It contends that the circumstances in which Randal’s Article was investigated “offer strong indicia of its reliability”, that most of Randal’s testimony is expected to be non -hearsay evidence and that this testimony could therefore be subject to examination by all parties and by the Trial Chamber. Moreover, it argues that “statements made through interpreters are routinely admitted by the Trial Chamber without requiring the interpreter to testify”.50 The Prosecution does not to elaborate in either its written or oral submissions on why it has not requested a subpoena addressed to X.
18. The Prosecution maintains that Randal does not propose any supporting authority in favour of the new evidentiary privilege he seeks.51 According to the Prosecution, the only legal basis he submits is the assertedly jus cogens principle of freedom of expression. The Prosecution contests that routine compulsion of journalists to testify would in fact have the consequences envisaged by Randal. Further, it argues that it was the publication of Randal’s Article that presumably jeopardised his access to officials in positions of authority , “which his testimony before the Trial Chamber will not affect”.52
19. The Prosecution submits that there has been no decision from the Tribunal or from the International Tribunal for Rwanda (“ICTR”)53 on the question of so-called journalistic privilege. The Prosecution argues that the examples from the Tribunal’s jurisprudence that Randal submits to demonstrate the limited nature of the Tribunals’ power to issue subpoenas offer no support for the creation of the proposed journalistic privilege. The confidentiality requirement is absent in Randal’s case. There is no dispute that the interview with Brdjanin had been conducted on the record and with no expectation of confidentiality,54 and the information gained in the interview was subsequently published. Similarly , according to the Prosecution the ICC Rules provide no support for the privilege that Randal seeks to assert in this case.55
20. Turning its attention to other sources of international or domestic law, the Prosecution argues that Goodwin v United Kingdom does not support Randal’s position insofar as it deals with the protection of confidential journalistic sources. In Randal’s case, the identity of his source has never been an issue, as it has been clearly and publicly identified as Brdjanin. Further, the Prosecution submits that Goodwin v United Kingdom in fact demonstrates that Randal’s proposed journalistic privilege falls well outside the scope of any journalistic privilege recognised to date.56 Finally, the Prosecution contests the relevance of the domestic cases put forward by Randal and submits other authorities from the United States and the United Kingdom that in its view reject the journalistic privilege that Randal seeks to assert.57
21. Therefore, according to the Prosecution, whether the courts should compel a journalist to testify by way of subpoena boils down to a matter of fact and degree, to be assessed by the court in each case, and dependant on factors such as the nature of the alleged offence and whether the journalist’s evidence goes to a major issue rather than to a peripheral one.58 According to the Prosecution, it is for the court to undertake the proper balancing exercise on the competing public interests.59
22. In this context the Prosecution submits that Brdjanin’s right to examine or cross -examine witnesses against him, and the Tribunal’s core fact-finding function, are directly at issue.60 The Prosecution notes that Randal is retired and stands in no danger, and that he has furnished the Prosecution with a statement.61 The Prosecution argues that even pursuant to the balancing exercise proposed by Randal his Motion must fail. Randal must appear for testimony, inter alia , because Randal offers no substantial interest that would override the powerful public interest that all relevant evidence be available to this Tribunal, and Brdjanin’s right to a fair trial.62
23. The Trial Chamber believes that it is imperative to distinguish clearly, at the very outset, what is truly relevant to the subject-matter of the Motion of which it is seised from what may be highly interesting and fundamental to the profession of journalism and the freedom of the media, as well as academically, but completely irrelevant to the question that this Trial Chamber has before it and now needs to decide. Indeed, the Trial Chamber makes clear that in its role as a Trial Chamber it has a duty to limit itself to what is strictly necessary for the purpose of deciding the issue of which it is seised and not to indulge in academic exercises or attempt to decide issues that may well be very interesting and related to the so-called journalistic privilege in the multi-facets in which it is presented, but go beyond , and have no bearing on what is really involved in, and truly relevant to, the subject-matter of the Motion.
24. Randal seeks the setting aside of the Subpoena issued against him primarily on the ground that as a journalist he is entitled to a qualified journalistic privilege with regard to his news gathering that should not be overcome under the particular facts of this case. In the alternative, he is submitting that if this argument is not accepted by the Trial Chamber, on the facts of this case, his evidence is not crucial, nor even significant, to either Prosecution or Defence and consequently he should not be subjected to compulsory process.
25. Having premised this, the Trial Chamber wishes to state that it agrees with Randal that “[j]ournalists reporting on conflict areas play a vital role in bringing to the attention of the international community the horrors and reality of the conflict ”.63 Randal is also right in affirming that “[m]oreover, it was the brave efforts and reporting of journalists in the former Yugoslavia that, in part, contributed to the establishment of the [Tribunal].”64 The Trial Chamber, however, emphasises that these reports would loose much of their weight and relevance for this Tribunal if the ensuing pretended privileges of such journalists are framed in a way so as to render the utility of their reports for the purposes of this Tribunal totally dependent on the wish or sole discretion of the journalist concerned, and therefore potentially useless. This is vitally important especially today, at a time when international criminal courts and justice are no longer a dream or sheer wishful-thinking but a much welcomed reality. Indeed, the vital importance of the role of the journalist in this context is also emphasised by this Trial Chamber because of its obvious utility in effectively serving to bring to justice those responsible for the crimes the journalists report upon.
26. The Trial Chamber also agrees with Randal that the “journalists’ role carries great responsibility and the journalist must at all times remain ‘objective and independent’ ”.65 What should be the legal consequences of this, however, is another matter. In fact, this Trial Chamber fails to see how the objectivity and independence of journalists can be hampered or endangered by their being called upon to testify, when this is necessary, especially in those cases where they have already published their findings. The objectivity and independence of journalists, and the media that publish their articles or reports, cannot be taken for granted a priori as Randal’s argument would have it. These aspects can be contested, as can the accuracy of the reporting or of the publication. What is published necessarily becomes public and readily available. No journalist can expect or claim that once she or he has decided to publish no one has a right to question their report or question them on it. This is an inescapable truth and a consequence of making public one’s findings. Journalism is a form of professional exercise of the right to freedom of expression available to every individual, but freedom of expression and freedom of the media, although strictly related, are two distinct fundamental freedoms. Indeed while freedom of expression is in itself a manifestation of individual liberty and is not the exclusive right of the journalist , freedom of the media is a prerogative exercised by that important industry. In the present case, the freedom of the media is only marginally involved. As will be seen, the assertions that this Subpoena and others like it in similar circumstances would restrict the freedom of expression of journalists or the freedom of the media are utterly unfounded.
27. What is really involved in the present case is some of the aspects of the right to freedom of expression as they relate to journalists reporting from combat areas which inevitably need to be considered within the context of the over-riding principle that the course of justice is not unduly impeded by the withholding of evidence. This would necessarily involve a delicate balancing exercise which will vary from case to case. It is in this context that this Trial Chamber, without the least hesitation, fully acknowledges the importance that journalists should not be subpoenaed unnecessarily and that the summoning and the examination of journalists before this and similar courts or tribunals be conducted and regulated in a way which will not unduly hamper, obstruct or otherwise frustrate the vital role of news gathering of the journalist and/or the media.
28. This premise is being made because although it was to be expected that sooner or later the status, the role and the pretended rights of journalists reporting from conflict zones would come up for consideration and decision by this Tribunal and /or the ICTR, they have been brought forward in what this Trial Chamber considers the wrong case. The reasons for this first point being made are the following:
A. The crucial problem of acknowledging and extending protection of journalistic sources , which is the heart-and-soul of the mentioned pretended qualified privilege and the bone of contention in almost the totality of the case-law to which reference has been made by the parties, is conspicuously absent in this case:
i) Randal is required by the Prosecution to testify on the content of, or more precisely , on part of, his Article, published in the Washington Post under the headline “ Preserving the Fruits of Ethnic Cleansing; Bosnian Serbs, Expulsion Victims See Campaign as Beyond Reversal”.
ii) In his Article, Randal does not mince his words or hide his primary source for the part of Randal’s Article on which the Prosecution wants to question him. He writes :
“Bosnian Serb housing administrator Radoslav Brdjanin, an avowed radical Serb nationalist said he “personally argued that those unwilling to defend [Bosnian Serb territory ] must be moved out” but that the Serb political leadership so far had not agreed . He 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.”
“To that end, he said, he favours simplifying the dozen or more documents non-Serbs are required to fill out before they are allowed to depart. Would be emigrants are now forced through a time-consuming and expensive process of obtaining stamps of approval from a wide array of Serb-run agencies, ranging from the army and the post office to the utility company and the public library.”
“Brdjanin said he disagrees with authorities in neighbouring Serbia and the new two -republic Yugoslav state it controls, saying they pay “too much attention to human rights” in an effort to please European governments and the Western opinion. “We don’t need to prove anything to Europe anymore,” he said. “We are going to defend our frontiers at any cost … and whenever our army boots stands, that’s the situation .”
“Specifically, Brdjanin said, he is preparing laws to expel non-Serbs from government housing to make room for 15,000 Serb refugees and for Serb combatants’ families. With that in mind, he said, officials recently began measuring Muslim apartments to ensure that each resident occupied no more than 12 to 15 square meters.”
iii) On 17 August 2001, Randal gave a statement to the Office of the Prosecutor where he states, inter alia, the following:
a) “I think it is important to note that any quotes in my article that are attributed to Mr Brdjanin are his own words. I covered wars and other nastiness as a calling for more than 40 years and took particular pride in ensuring that all quotes were absolutely accurate. Quotes are the coin of the calling, especially in war situations .”
b) “I am willing to speak with investigators for the Tribunal but I hesitate as a journalist to testify before the court. I would prefer that my statement and article stand for themselves. However, if that were not possible I would be willing to testify that the quotes accredited to Brdjanin are true and accurate.”
iv) In his written submissions and in the course of the sitting of 10 May 2002 before this Trial Chamber, Randal changes position departing from his previous statement that he could testify that the quotes accredited to accused Brdjanin are true and accurate, and now states that if produced as a witness he can only furnish hearsay evidence against Brdjanin as he did not speak to Brdjanin himself but through X. He does concede, however, that he could testify on Brdjanin’s demeanour during the interview and that he has no reason to doubt X’s translation of Brdjanin’s reported quotes from Serbo-Croat into English.
v) Neither in his written submissions of 8 May 2002 nor in the course of his oral argument on 10 May 2002 does Randal state that he is the holder of information related to his Article which he received in confidence that has been published or has remained unpublished and/or that if he is compelled to give evidence this would require of him to reveal a confidential source.
vi) Almost the entirety of the case law quoted and/or referred to by Randal, including Goodwin v United Kingdom,66 deals with the protection of journalistic sources as being one of the basic conditions for freedom of the media and the need to restrict compulsory source disclosure to those cases when it is justified by an overriding requirement in the public interest . On the basis of the submissions made to this Trial Chamber it is more than obvious that this fundamental question does not arise in Randal’s case. In fact, with regard to the relevant part of Randal’s Article that the Prosecution is seeking to question him about as a witness, he himself identifies his sources as being Brdjanin himself and X, whose trustworthiness as an interpreter Randal does not put in question. This is therefore not a case in which Randal, if forced to testify, can claim that he has an interest in not disclosing and a right not to be forced to disclose his confidential source as part of his fundamental right to freedom of expression: his sources are known already and who has made them known is Randal himself. It is also definitely not a case of being forced to testify on unpublished material – Randal himself has not made that suggestion. Rather, it is the case where it was Randal himself that decided to disclose publicly in the Washington Post what he alleges to have been told by Brdjanin himself.
B. 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 :
i) Randal himself agrees that he is now retired.
ii) Randal also agrees that following the publication of his Article, he returned to Banja Luka several times over a span of four years during which, rather than avoiding Brdjanin, he sought further meetings with him. He further states that Brdjanin never agreed to talk to him again and on at least one occasion was quite hostile to him . Apart from this solitary incident there is no hint that at any time Randal considered himself to be in danger of any kind of harm, physical or otherwise, before, during or after his visits to Banja Luka, in what objectively or subjectively could be perceived as being a consequence of his having published what he claims to be the details of his interview with Brdjanin. If there has been a change in the meantime or since, then it is that Brdjanin is now under the jurisdiction of this Tribunal .
29. The second point that this Trial Chamber makes is that in the particular circumstances of the case, Randal’s motion is misconceived. Randal puts into one basket, which he calls qualified journalistic privilege, all the scenarios which have prompted a multitude of journalists as well as newspapers to claim a privilege ranging from the absolute to the qualified, and he does this in an indiscriminate manner. He does so without even attempting to distinguish between those cases where something fundamental like being forced to reveal confidential sources and unpublished information or cases where newspapers are subjected to search of their offices and archives, from cases like his, where he had no problem with revealing to the entire world Brdjanin’s alleged declarations in a publication but now seeks to avoid having to confirm it. To him, the consequences of a subpoena are the same irrespective of whether it is the case of a journalist who wishes to keep confidential his sources and the information he has received in confidence or the case of a journalist who has decided to publish. To him, in either case, compulsion to testify before an international tribunal like this Tribunal or the International Criminal Court undermines the independence of the journalist, and could have serious consequences on the journalist’s ability to gather useful and credible information in the first instance. To him , in either case, the journalist may be placed in danger if it is known that he or she could be a potential witness. To him in either case, without distinction , the qualified privilege he claims ought to be affirmed by this Trial Chamber will serve to protect and safeguard journalists’ safety and enhance their ability to gather and disseminate information of paramount international interest. He does acknowledge that in his particular case, being retired, these dangers are less, but claims that other journalists would have their safety and their continued ability to gather information compromised if he is made to testify, as if this is the first time that a journalist has been forced to testify on what he has actually published . Unfortunately for him, he does not explain how this would happen in the present case if he is forced to testify. What is worse is that he expects this Trial Chamber to assert the journalistic qualified privilege as he would like to see it, basing the same on a collage of decisions, mainly from the United States, which almost in their entirety dealt with cases and situations completely different to his.
30. Indeed the Trial Chamber is fully conscious of its important role in affirming and strengthening international human rights: not only those fundamental rights very often violated in the cases that have come and will continue to come before this Tribunal, not only the substantive and procedural rights of the accused, not only the rights of victims, but also all those other fundamental rights and freedoms that in the course of its work it is called upon to protect, including freedom of expression. In this context, the Trial Chamber does understand why Randal seeks from this Tribunal the first pronouncement ever on his version of a journalist’s qualified privilege. However, as stated, the whole case has been misconceived. In the fulfilment of its said role, however, the Trial Chambers does acknowledge that although it is not bound by the laws and judicial pronouncements of any State , it has a duty to keep itself abreast with the developments in the field of international human rights.
31. Of particular interest are the decisions of the European Court of Human Rights amongst others, and the decision of that Court in Goodwin v United Kingdom is one which certainly sets a standard in the sphere of journalistic privilege for the years to come. Indeed, it would be a step in the wrong direction, a step backward , and a severe blow to the freedom of expression of journalists and the freedom of the media, if this Trial Chamber were to accept a standard lower than that upheld in the Goodwin case. The decision of the European Court of Human Rights in the Goodwin case, however, can only be of help in Randal’s case if he has confidential information that he has not published and which he is asked to disclose, or in case he claims to have an undisclosed confidential source that he wishes not to disclose. In any such case, such qualified privilege as conceded in the Goodwin case is always subject to an over-riding requirement to disclose in the public interest. The Trial Chamber, however, believes that since on the basis of the facts that it has before it, the application of the qualified privilege established in the Goodwin case does not arise, it should not state anything further on the Goodwin case or the extent of the journalistic qualified privilege therein established, because this would not be strictly necessary for the proper determination of the issue before it.
32. Finally, Randal argues that in any case his evidence cannot be crucial, or even significant, to either Prosecution or Defence. He also submits that this Trial Chamber did not even attempt to evaluate this possibility prior to issuing the Subpoena . In the present case, on the one side, the Prosecution submits that the statement, and particularly the quotes attributed by Randal to Brdjanin go directly to the heart of its case against him, while on the other side it is being alleged by Brdjanin that he never said the words attributed to him in Randal’s Article. There can be no doubt that if proven to be true, the alleged declarations of Brdjanin are pertinent to the case of the Prosecution, as explained during oral argument, and if they are , there are two consequences: first, that this Trial Chamber cannot deprive the Prosecution from bringing forward in evidence Randal’s Article and Randal to confirm it, and second, that it would be most unfair to the Defence if, as Randal suggests , Randal’s statement to the Prosecution and his Article would stand for themselves without his need to testify. Furthermore, contrary to what Randal seems to be suggesting , it is to be noted that all this was submitted and debated before the decision was taken by this Trial Chamber to issue the Subpoena. In these circumstances, once the decision to publish Brdjanin’s alleged declarations was taken and implemented by him, Randal has no right to pretend that he cannot be questioned on what he published giving as a reason that as a journalist he would rather not testify and that he has a privilege that goes well beyond what has been acknowledged in Goodwin v UK and which, in any case, as explained above, finds no application in the present circumstances.
33. There are several other submissions that Randal has made to the Trial Chamber but which, in the particular circumstances surrounding this Motion are not relevant and need not be considered, let alone decided.
For the foregoing reasons,
TRIAL CHAMBER II HEREBY dismisses the Motion.
Done in French and English, the English version being authoritative.
Dated this seventh day of June 2002,
At The Hague
[Seal of the Tribunal]