Tribunal Criminal Tribunal for the Former Yugoslavia

Page 5360

1 Friday, 10 May 2002

2 [Motion Hearing]

3 [Open session]

4 --- Upon commencing at 9.08 a.m.

5 [The accused entered court]

6 JUDGE AGIUS: Yes. Madam Registrar, could you call the case,

7 please.

8 THE REGISTRAR: Yes, Your Honour. This is the case number,

9 IT-99-36-T, the Prosecutor versus Radoslav Brdjanin and Momir Talic.

10 JUDGE AGIUS: Mr. Brdjanin, good morning to you. Can you hear me

11 in a language that you can understand?

12 THE ACCUSED BRDJANIN: [Interpretation] Good morning, Your

13 Honours. I can hear you and understand you.

14 JUDGE AGIUS: I thank you. You may sit down.

15 General Talic, good morning to you. The same question. Can you

16 hear me in a language that you can understand?

17 THE ACCUSED TALIC: [Interpretation] Good morning, Your Honours. I

18 can hear you in a language I understand.

19 JUDGE AGIUS: I thank you. Please be seated.

20 Now, I think we go to appearances, stopping after the Defence.

21 Then we go in private session for a few minutes to discuss even the

22 remaining part of the appearances. And then during that --

23 MS. KORNER: Your Honour, may I interrupt before we even get to

24 it. We dealt with this partly confidentially originally.

25 JUDGE AGIUS: Yes. Exactly. But I don't think it should be

Page 5361

1 confidential today.

2 MS. KORNER: Your Honour, it was all on BBC news this morning.

3 JUDGE AGIUS: I know.

4 MS. KORNER: So unless my learned friends Mr. Robertson or

5 Mr. Powles want this heard privately, and I don't think they do, then this

6 can all be dealt with in open session.

7 JUDGE AGIUS: Yes. But let's hear what Mr. Ackerman and

8 Madam Fauveau have to say about that.

9 I personally don't think it's appropriate to have this debate in

10 either private or closed session. I think it would be stupid to even go

11 in that direction. However, even though the name of the journalist has

12 been mentioned -- was mentioned on BBC this morning, on the radio at

13 least, I still think that if there is a specific request from the

14 witnesses -- Defence team or counsel --

15 MS. KORNER: Yes.

16 JUDGE AGIUS: -- For the name not to be mentioned during the

17 debate, we would meet with that request.

18 MS. KORNER: Yes. I think Your Honour the only question we're all

19 agreed on is the other journalist who has been involved -- it has been

20 greed by certainly Mr. Robertson and myself -- his name will not be

21 mentioned.

22 JUDGE AGIUS: Okay. Thank you.

23 Mr. Ackerman.

24 MR. ACKERMAN: Your Honour, I think -- I think we have too many

25 closed and private sessions at this Tribunal.

Page 5362

1 JUDGE AGIUS: Yeah. But let's stick to this one.

2 MR. ACKERMAN: My feeling is this should be completely open,

3 should not be close it. And I do agree the other name of the gentleman

4 should not be mentioned.

5 JUDGE AGIUS: Okay. Thank you Mr. Ackerman.

6 Madam Fauveau.

7 MS. FAUVEAU-IVANOVIC: [Interpretation] We are not opposed either.

8 We would like all the hearings to be public.

9 JUDGE AGIUS: Yes. But that's a wish that will never be

10 fulfilled, Madam Fauveau.

11 So appearances for the Prosecution.

12 MS. KORNER: Your Honour, Joanna Korner, together with Nicholas

13 Koumjian assisted by Denise Gustin, case manager. And sitting behind me

14 today --

15 JUDGE AGIUS: Yes. I see a new face.

16 MS. KORNER: You see a new face, Your Honour. I can introduce to

17 Your Honour Colin Black, who's an intern working for us at the moment but

18 who is largely responsible for all the work that's gone into the response

19 from our side.

20 JUDGE AGIUS: Okay. I thank you, Ms. Korner. And good morning to

21 you.

22 Appearances for Radoslav Brdjanin.

23 MR. ACKERMAN: Your Honour, I'm John Ackerman. I appear with

24 Marela Jevtovic and Tania Radosavljevic.

25 JUDGE AGIUS: I thank you, Mr. Ackerman. Good morning to you.

Page 5363

1 Appearances for General Talic.

2 MS. FAUVEAU-IVANOVIC: [Interpretation] Natasha Fauveau-Ivanovic

3 for General Talic, Your Honour.

4 JUDGE AGIUS: Thank you.

5 And appearances for the witness.

6 THE INTERPRETER: Microphone, please. Microphone.

7 MS. KORNER: You need to put your microphone on.

8 MR. ROBERTSON: I'm sorry. It is a great privilege to appear

9 before this Court. And may I begin by apologising most profoundly for our

10 delay this morning. It was due to getting through security and the

11 difficulties we encountered as novices getting through the security system

12 outside the court.

13 Can I say that I represent Mr. Jonathan Randal and we have no

14 concerns about this being heard in public session, with Mr. Steven Powles

15 and Mr. Mark Stephens and Ms. Fiona Campbell.

16 JUDGE AGIUS: Okay. I thank you, and good morning to you.

17 MS. KORNER: Your Honour, may I just mention one matter before we

18 begin. I don't think having spoken to Mr. Robertson that it will actually

19 delay us. But we received -- I received personally in London from

20 Mr. Powles a copy of the full revised skeleton argument. I was unable

21 because of my professional commits to look at it until yesterday evening,

22 and I then noticed that there were a number of authorities referred to

23 which we had not yet acquired and have only just managed to get hold of

24 this morning.

25 Accordingly, if any reliance is going to be placed upon them, I

Page 5364

1 would be forced to ask Your Honour for some time just to read through

2 them. Your Honour, they're the authorities referred to in paragraphs 30

3 onwards, I think it is.

4 Your Honour, yes, they're authorities referred to paragraphs 30,

5 35, 36, and 38.

6 JUDGE AGIUS: Yes, Ms. Korner.

7 MS. KORNER: Your Honour, that's --

8 JUDGE AGIUS: There are actually two options. One -- one option

9 is what you are requesting. The second option is that we go ahead as

10 planned in any case. And then you will be given every opportunity if you

11 want or if you require to file a written note of submissions on the

12 authorities if necessary. I mean, I myself in the little time that I was

13 left available -- because I was pretty much in a worse position than you

14 were. I got everything -- not everything -- part of this documentation

15 very late yesterday evening, and the rest this morning, because my

16 secretary kept the rest under lock and key, as she usually does. So more

17 or less I have seen what I needed to see first and foremost. That's

18 Mr. Robertson's skeleton -- written submission and your response. But I

19 must say your response very superficially, because this was given to me

20 this morning.

21 MS. KORNER: Your Honour, we certainly -- we had to await that,

22 because although we'd been given, as I know Your Honour knows a -- as it

23 were, draft skeleton, we were told we would get the full skeleton

24 yesterday. It came through. We had to -- or because I wasn't here --

25 JUDGE AGIUS: I understand that. I'm not criticising you,

Page 5365

1 Ms. Korner.

2 MS. KORNER: That was filed. I don't know why Your Honour didn't

3 get it.

4 JUDGE AGIUS: No. Obviously. And you depended on Mr. Robertson

5 in any case.

6 MS. KORNER: Correct.


8 MS. KORNER: Well, I'm sorry about that, Your Honour. But in

9 any event, as Your Honour rightly say, I think it's probably better to

10 proceed, see how the argument develops, and then if there's a necessity to

11 go into the authorities in greater detail, that could be done as Your

12 Honour says by written submissions.

13 JUDGE AGIUS: Okay. Much of the material that has been

14 forthcoming I am familiar with already because this is a subject which I

15 dealt with in my jurisdiction on several occasions.

16 MS. KORNER: Well, that's very helpful.

17 JUDGE AGIUS: And one of my cases should have actually ended up in

18 Strasbourg, but it never did. So it's a topic that I'm familiar with, and

19 I will later on if necessary even before proceeding to our deliberation

20 and eventual decision bring to your attention if necessary other material

21 which has not been referred to here, particularly with regard, Mr.

22 Robertson -- with regard to the US position, the position in the US, which

23 makes a distinction between the ordinary courts and grand juries and is a

24 special decision of the Supreme Court in that regard with a concurring

25 decision -- judgement by Judge -- Supreme Court Judge Powell,

Page 5366

1 if I remember well which are quite pertinent to this case. But in any

2 case let's start --

3 MS. KORNER: Your Honour, can I just mention the second matter.


5 MS. KORNER: And again, I hope it won't cause any delay.

6 Again, I was unaware from the draft skeleton argument which refers

7 to expert that is what in actual fact it meant was that the solicitors

8 acting on behalf of Mr. Randal had taken a number of statements from

9 persons, including other journalists of principal and what journalists

10 wanted. Now, Your Honour, I don't accept the content of a lot of what he

11 said, and if there is going to be great reliance placed on them in the

12 course of argument then I'm going to be asking Your Honour to order them

13 to attend for cross-examination. But Your Honour, as I say, I want to

14 make that clear now but I don't ask for any delay in the argument on that.

15 JUDGE AGIUS: No. I don't think -- I don't think it's the case of

16 creating incidents which -- which would bring about a delay in the

17 argument. I think let's get it over and done with. I know that I am

18 dealing with professional lawyers here with vast experience, so I think we

19 can sit down and proceed.

20 So I give you the floor, Mr. Robertson.

21 MR. ROBERTSON: Thank you very much, Your Honour.

22 JUDGE AGIUS: I'm not going to restrict the debate in any -- in

23 any way by way of time or anything. But I leave it in your hands to

24 moderate --

25 MR. ROBERTSON: Thank you, Your Honour. I've had a word with

Page 5367

1 Ms. Korner, and we hope that we shall finish our submissions this morning

2 or certainly shall I say by 1.00.

3 JUDGE AGIUS: Thank you.

4 MR. ROBERTSON: But could I deal first with her two concerns and

5 say that the only case in the paragraphs that she has referred to that I

6 will be placing any direct reliance upon is the decision of Lord Denning

7 in the case at paragraph 38. And the only matters that -- from that case

8 that she need concern her with are set out in that paragraph. So there

9 will be no need for her to -- to read any cases.

10 So far as the witness statements are concerned, as I understand

11 her draft -- and I doubt that this is has changed -- she does -- the

12 Prosecution does accept the principles of which they speak, and so it

13 should not be necessary to go in -- into those statements in any detail or

14 deliver any controversial matters. I think the statements are helpful as

15 explaining from a professional perspective why journalists feel this way

16 and why a rule adopted by this Court of more or less automatically

17 summonsing them would put them in danger and more importantly put their

18 sources in danger.

19 The most important of the statements in the -- what might be

20 termed the evidential material is the very careful and important analysis

21 offered by Judge Richard Goldstone, the very first Prosecutor who has

22 clearly thought through this matter a lot. And I doubt that Judge

23 Goldstone would be the person that Ms. Korner would wish to subpoena and

24 cross-examine. But it is his statement of principle upon which we place

25 great reliance and seek that the Prosecutor now follow the principles that

Page 5368

1 he laid down extra carefully.

2 Can I begin, Your Honours, by inviting attention to the juristic

3 nature of the application, which is put on two bases. What we seek to

4 achieve is the recognition by this Court of what I would term a "public

5 interest privilege." The word "privilege" always raises hackels

6 particularly outside the narrow domain of lawyers who is know that it

7 doesn't mean what it does in some languages. So let me say at once that

8 this is a public interest qualified privilege in which we invite the

9 courts not to hold that journalists have an immunity from testifying but

10 that they have a presumptive right not to be forced to testify if they are

11 unwilling except in a number of situations, which we will invite the Court

12 to define.

13 As Ms. Korner notes in her, at least, draft submissions, this is

14 the first time that this Tribunal has faced what is as Your Honour has

15 noted is not uncommon in domestic courts and has been addressed by the

16 European court of human right, namely the position of the journalist as

17 witness, a position that is dealt with in domestic laws alongside the

18 position of the lawyer, the social worker, the clergyman, people who have

19 a special relationship with the case and where it may not be appropriate

20 for public interest reasons to compel them to testify. And it is the

21 public interest which we rely upon as the foundation of the privilege.

22 Another way of putting it is to say that we are asking the Court

23 to apply a presumption -- a presumption applied through or from its own

24 inherent power to regulate its proceedings; a presumption that journalists

25 will not be compelled to give evidence as to their work in war zones or

Page 5369

1 conflict zones, perhaps more appropriately, unless certain conditions are

2 made out. And it may be that that way of putting it is more appropriate.

3 That would be a matter for the Court to decide. But the basis upon which

4 we seek either the public interest privilege or alternatively the

5 presumption to be acknowledged in the common law of the court is related

6 to and only related to the journalist's work in the conflict zone.

7 Obviously information that is relevant, that is acquired by the journalist

8 in any other capacity should be a situation dealt with according to the

9 rules for ordinary testimony. But it is the conflict zone material that

10 the journalist collects that is the key to this application.

11 The reasons for it -- and I gather that there is -- these are not

12 substantially dissented from -- as set out in our application as paragraph

13 11. I have -- at paragraph 11. The earlier paragraphs are simply

14 setting, as it were, the scene in this case. Mr. Randal, whom I

15 represent, is in fact an elderly retired journalist who worked for the

16 Washington Post and who wrote, as Your Honours know, an article in -- way

17 back in 1993 which contained an interview with one of the defendants.

18 Just to summarise the facts very briefly, that interview was given by the

19 defendant to two journalists, one of whom -- who we shall call Mr. X,

20 spoke fluent Serbo-Croat. He'd been a Fullbright scholar in Belgrade;

21 and Mr. Randal who spoke no Serbo-Croat relied on Mr. X for his

22 translation, so that your -- this Court has the article that he wrote and

23 this Court has a copy of a witness statement that Mr. Randal gave

24 willingly when he was contacted by the office of the Prosecution which

25 makes clear that he cannot give other than hearsay evidence, so to speak,

Page 5370

1 of the conversation he had with the defendant. He can, of course, speak

2 as to the defendant's demeanour in the course of that interview. He can,

3 of course, speak as to Mr. X's reputation as a fluent Serbo-Croat

4 speaker. And so one would not say - and I do not contend - that he can

5 give no evidence at all to this Court. Those two matters may be of some

6 interest to the Court. I shall invite at the end of the day the Court to

7 say the amount of relevance they add to what the Court has already in the

8 article and in the witness statement are insignificant and certainly not

9 sufficient under the rule for which I contend to compel this journalist to

10 testify.

11 The other matter that Mr. Randal deals with in his witness

12 statement which may be particularly germane to the public interest as

13 purely as example of it is that he says that after his article was

14 published, he was shunned and avoided by the defendant. And that, of

15 course, goes or is an example of what we say will happen if journalists

16 are routinely compellable to give evidence against those whom they

17 interview, those who give them facilities in war zones to observe what may

18 very well be war crimes. If they are routinely compellable, then they

19 will not be given in future conflicts or in the same conflict which may,

20 as this did, continue for some years. They will not be given interviews,

21 they will not be afforded facilities, they will be not allowed to enter

22 zones where they may observe war crimes. And in short, the amount of

23 information that they are able to produce will tend to dry up. And I use

24 that language because that was the language of the European Court of human

25 rights when it accepted that journalists in local situations had a

Page 5371

1 privilege against being forced to testify in circumstances which might

2 expose sources.

3 I make plain that on the facts of this case there is no

4 confidential source involved. However, when journalists are compelled to

5 testify to what they have seen in war zones, it may well happen that their

6 confidential sources are exposed by way of cross-examination, by way of

7 giving the Defence access to their notebooks. And so the confidential

8 source issue, while it is not a primary issue in the -- on the facts of

9 this case, is nonetheless -- must be kept in mind as one of the many

10 dangers, one of the many matters that are contrary to the public interest

11 that may arise if journalists are routinely required to testify.

12 At paragraph 11, we say, having noted that the subpoena power is

13 not absolute, we say: "It must be tailored to the recognised public

14 interest privileges. We've recognised a public interest privilege

15 specifically for lawyers, court employees. And there is of course in the

16 Simic case the judgement that gives a very firm public interest privilege

17 to Red Cross workers. We say, building upon that jurisprudence, that a

18 Red Cross worker today, a Christian aid worker the next day or a Care

19 worker or any indeed NGO worker would be given the advantage -- or would

20 be given under the Red Cross rule, would be given a presumption against

21 being compelled to testify where that public interest were at stake. We

22 say that there is another category, namely the category of journalist, who

23 should be entitled to, we put it, a strong presumption against requiring

24 journalists to testify pursuant to compulsory process, a presumption that

25 can be overcome only if the Prosecutor satisfied a test that responds

Page 5372

1 to and balances the underlying policy considerations, including on the one

2 hand in a sense the need of justice to have the journalist testimony and,

3 on the other, the public interest in not having journalists compelled,

4 because they will tend to dry up the amount of information the public gets

5 about conflicts and may in certain cases put journalists' lives at risks

6 and perhaps those of their sources. But the balancing test that we cite,

7 which is perhaps appropriate for the Court to look at, is in the judgement

8 of Judge Hunt in the Court of Appeal in Simic.

9 The overriding principle, of course, of the customary

10 international law on which we draw is provided by Article 19 of the

11 universal declaration, the right of freedom of communication. And we

12 shall again be relying on the Goodwin case in the -- which was brought

13 under Article 10 of the European convention to show that that is not just

14 a direct right of the press to report to the public; it also covers what

15 the European Court in masses of jurisprudence now calls the watchdog role

16 of the press, the journalist as watchdog to bark against crime and other

17 damaging facts. What we say is that one can extrapolate from those almost

18 universal human rights treaties requiring courts to take into account the

19 right of freedom of expression, that the watchdog role of the journalist

20 is particularly important and needs particular protection when the

21 journalist is covering war and conflict, because in that situation there

22 have lamentably -- and Your Honours will see it in the material -- there

23 have been hundreds of deaths of journalists. Some 700 journalists have

24 been killed in conflict zones over the past ten years. And for many --

25 many a week -- at the end of last year in Afghanistan, there had been more

Page 5373

1 deaths of journalists than deaths of certainly US soldiers. So it is a

2 matter that is of real concern and it is a privilege on our part to invite

3 the Tribunal to make the first ruling on this difficult subject but

4 important subject, drawing upon the universal -- jus cogens principle as

5 it has been applied to journalists in other situations.

6 Now, at 12 we set out the public interest upon which we rely. We

7 say that "media coverage in combat zones serves firstly to provide public

8 information -- important information to the world about international

9 conflicts and to alert the world to the commission of war crimes." Now,

10 that is confirmed most emphatically by Judge Goldstone, and I gather the

11 Prosecution do not dispute it as a -- as a fact. And secondly, that

12 journalists in their work "Provide evidential material for prosecutorial

13 investigation, which if followed up can lead to the arrest of war

14 criminals." So there is no sense in the which the rule for which we're

15 contending will freeze the press out of the Prosecution process. The

16 journalists play, as everyone knows, a significant part not only in

17 putting information into the public domain, which many years later is

18 followed up by prosecutors. Frequently journalists talk off the record to

19 prosecutors and indeed to defenders. It is not as if their -- it's rather

20 like telephone tap information in some jurisdictions which -- which is

21 never allowed in court but which is permitted to assist prosecution

22 investigations. There is no -- this is not a submission which excludes

23 journalistic material from either prosecution or defence. The basis of it

24 is that of course the work of the journalists may be relied upon and

25 followed up by -- in mercurial process but it cannot take the form other

Page 5374

1 than in exceptional cases of compelling a reluctant journalist to testify.

2 The second principle which I think, too, the Prosecution will

3 agree on is that these outstanding benefits for international criminal

4 justice and Judge Goldstone makes clear that this Tribunal would not be in

5 existence were it not for press reporting and CNN coverage and the like of

6 the conflict in former Yugoslavia -- that these outstanding benefits for

7 international criminal justice will only accrue if journalists are allowed

8 to enter war zones and conduct interviews with officials in political or

9 command responsibility positions. One could go further. They only accrue

10 to the extent that journalists are able to inveigle their way into

11 military operations, into places from which they may observe what's going

12 on, as well as interviewing persons who are in command. So that's --

13 those two principles I think we will have significant agreement on.

14 Thirdly -- and here the controversy, I think, begins -- if

15 journalists are routinely compelled to give evidence subsequently to

16 international criminal courts against those they've been permitted to

17 observe or to interview, we say it follows logically that they will have

18 fewer opportunities in the future. And that is because they will in the

19 particular conflict or by the particular parties waging that conflict be

20 regarded with suspicion, be either excluded from it or perhaps in danger

21 if they manage to get into it. At any event, their opportunities to

22 observe what is going on -- and the journalist provides not only, let

23 us -- in the case of actual war crimes -- but the presence of any official

24 observer and the presence of the journalist is a great deterrent to the

25 commission of war crimes. It's obvious that the armies and the -- the

Page 5375

1 warring parties are going to be much more careful as to how they deal with

2 civilians if there are journalists present observing them than if they can

3 act without any kind of observation. So whether or not the Prosecution

4 agrees with us on 3, we say it's a pretty obvious fact of life.

5 The fourth point is that "Routine compellability will put

6 journalists on the whole as a collective profession at risk of greater

7 harm and danger in conflict zones." We don't stress that point. It is

8 because this application is not made on the basis that journalists are

9 afraid to go into war zones. Journalists have to be, as the statements

10 attest, particularly brave and particularly -- sometimes very devious to

11 get into war zones. But that's their duty, and that's a duty that they

12 will continue to do -- to conduct. But nonetheless, if it were to be the

13 case that a Court -- and of course from July the 1st, we will have the

14 international criminal court. And Your Honours's judgement in this case

15 will be an important precedent for that court, which may cover dependent

16 upon the security council and parties and so on, but which may cover

17 conflicts anywhere in the world. But where an ad hoc court like this

18 one has been set up in respect to a particular conflict which is ongoing,

19 then the routine -- if that conflict goes on for eight years and if in

20 year three or four the Court starts to compel journalists to testify

21 about -- about what they interviewed and observed in year one, then one

22 can well envisage that in year five the role of the journalist or the

23 position of the journalist caught up by one of the parties that he's

24 testified against will be very uncomfortable and very dangerous. It may

25 be that the journalists will simply be kept out of the war zone and that

Page 5376

1 that will, as I say, come in under 3 in terms of drying up information.

2 It may be -- and one postulates possibilities here, but any death is to be

3 avoided if possible by court rules. It may be that they would be in

4 physical danger. Certainly if arrested, those they've been speaking to

5 would be in great danger -- at least greater harm and danger, as we say

6 in conflict zones.

7 And we draw from those four propositions the fifth, that as a

8 result routine compellability would therefore mean that less valuable

9 information would be obtained and communicated by conflict zone reporters,

10 including specifically information about possible or prima facie war

11 crimes and crimes against humanity.

12 So in order to avoid that adverse consequence, we contend that

13 international criminal courts like this one must allow journalists a

14 public interest privilege, a public interest and qualified privilege not

15 to testify, or as we put it, alternatively, apply a presumption when a --

16 when a subpoena is sought by either the Prosecution or the Defence that

17 the journalists should not be forced to testify.

18 Now, can I say at once that the first point to make is that many

19 journalists will volunteer testimony. One is not formulating a rule that

20 will bind all journalistic consciences. There have been already in the

21 cases heard by this Court some evidence from several journalists who have

22 voluntarily testified. So let's -- we are not, as in the Red Cross

23 situation, saying that no journalist should ever testify. There will be

24 journalists who as a matter of their own conscience will feel duty-bound

25 to testify voluntarily without a subpoena. So they -- that is their

Page 5377

1 right, and no one -- least of all Mr. Randal -- would seek in any way to

2 affect that.

3 But the -- the first situation we come to at 13(1) is where a

4 journalist says, "All right. I have decided that I will testify but

5 for -- I want to do so under subpoena." Now, in that situation, when the

6 journalist indicates clearly to the Court or to the Prosecution that he

7 will waive the privilege, if it's a privilege, or not insist on the

8 presumption, if it's a presumption, but he wishes to do so under subpoena,

9 then obviously in that situation there can be no difficulty about the

10 Court issuing the subpoena if the journalist evidence is relevant and

11 sought by one side or the other.

12 But the crucial part of our submissions is at 13(2), where we

13 attempt to formulate a test. And we offer it to the Court merely as a

14 draft, because Your Honours will -- as Your Honour has said in local law

15 will have accounted this and will be no doubt concerned to formulate the

16 test in different ways. But it is the key passage, "Where the Court is

17 satisfied that the unwilling journalist, if forced to testify, will

18 provide admissible evidence that has, we say, four characteristics. Then

19 in that case the privilege should be overridden. The presumption is

20 rebutted.

21 Firstly, when the journalist -- if the evidence that the

22 journalist can give is "Of crucial importance to its determination of a

23 defendant's guilt or innocence." There are different ways of putting

24 that. "Crucial importance" is simply a phrase that no doubt Your Honours

25 can improve upon. You'll see in the cases that there are different ways

Page 5378

1 of indicating that the evidence must be of very great importance either to

2 proving the defendant guilty or to establishing the defendant's innocence.

3 I use that terminology because the -- the more accurate one of, I suppose,

4 raising a realistic doubt about the defendant's guilt is more appropriate

5 where the test of guilt is beyond a reasonable doubt. But there it is.

6 In some appropriate formulation, the first hurdle that the Prosecution

7 must surmount when it seeks a subpoena is to establish to the Court's

8 satisfaction that the evidence they seek from the journalist is of crucial

9 importance, evidential importance to its case.

10 Secondly, they have to establish -- and as I say, that is not this

11 case, because the little tidbits of material that Mr. Randal could add --

12 ask they're there in his statement anyway -- are not of great

13 significance. The second matter -- and of course it's the Court that must

14 assess that significance. I suppose every Prosecutor thinks as every

15 Defence counsel thinks that the evidence they want to get in is of great

16 importance. But very how often it isn't and the Court must do that

17 assessment for itself.

18 The second test is -- and this is found in, I think, certainly the

19 English and American laws on the subject -- the Court has to be satisfied

20 that the particular evidence can't be obtained by any other means or from

21 any other witness. And that really requires the -- the party that is

22 seeking the subpoena to establish that it can't get the evidence any other

23 way. Here too on the facts of this particular case, the Prosecution fail

24 fairly dismally because they've got the evidence in the hearsay form and

25 the journalist statement, but in any event, Mr. X, the journalist whom

Page 5379

1 they don't seek to subpoena, is the person who can, one would think, give

2 the direct evidence of what the defendant said. But it's the principle

3 that matters rather more perhaps than the facts of this case. And that

4 principle that you can only force a journalist to testify if you can't get

5 the evidence in from any other means is an important and common one.

6 C, "That the giving of this evidence by the journalist will not

7 require him to breach any obligation of confidence." Now, that perhaps is

8 inappropriate here because that is perhaps better under a separate rule

9 that follows from Goodwin. But nonetheless it reflects the case law of

10 the European Court and Goodwin in particular that where there is a

11 confidential obligation at stake, the Court should not force the

12 journalist to breach that. But it may, as I say, be better expressed as a

13 separate rule.

14 And fourthly, D, "That the giving of this evidence will not put

15 him, or his family or his sources in any reasonably apprehended personal

16 danger and will not unnecessarily jeopardise the effectiveness or safety

17 of other journalists reporting from conflict zones in the future." That

18 is a matter that must be assessed in the particular case. It may be

19 difficult here for a journalist who's retired from the fray in respect to

20 a journalist who wants to go back to a continuing war that is subject to

21 the Court's jurisdiction. But in principle, again, it is important to

22 have -- if we are formulating this rule for non-confidential cases, a

23 third principle, that there be -- even if the evidence is highly relevant

24 or crucial, that the compellability shouldn't -- the journalist should not

25 be compelled to give it if there is a reasonably apprehended personal

Page 5380

1 danger to himself or to his family or sources. So that -- we go on to say

2 that that is basically our submission, that that is the formula or a

3 formula akin to it that should be adopted either by way of a public

4 interest privilege against testifying or by way of a presumption against

5 testifying.

6 And so the legal basis for the submission is set out. But I

7 wonder if I could take you firstly to the Goldstone statement and the

8 material just to summarise it. I don't know -- I think you have it too.

9 And it's important, because the Washington Post is a newspaper that is --

10 has been celebrated over the years for its exposure of wrongdoing. I

11 think its -- its publisher, Mr. Bo Jones, says at tab 2 sets out

12 the basis upon which the Post supports its former journalists and its

13 statement of policy, and this is an example of a position -- it may not

14 be identical -- but Your Honours can expect that celebrated and

15 significant news organisations would take in respect of this matter. And

16 it's the third paragraph in tab 2: "The Washington Post has long

17 maintained a policy that our reporters should not testify --"

18 THE INTERPRETER: Could counsel read slowly, please.

19 JUDGE AGIUS: Yes. Mr. Robertson, sorry to interrupt you. But

20 I've had a request to slow down because of the interpreters.

21 MR. ROBERTSON: Certainly.

22 JUDGE AGIUS: Thank you.

23 MR. ROBERTSON: This is in the third paragraph at tab 2, where the

24 publisher -- this is a statement of policy from the publisher who

25 says: "We fully appreciate the importance of this Tribunal and in

Page 5381

1 particular this trial. We recognise the need to gather evidence in order

2 to prosecute alleged war criminals. Newspaper employees in the United

3 States generally testify in legal proceedings like anyone else but not

4 about their news gathering. Testimony about news gathering is different

5 and does not serve the public interest in the long term."

6 He goes on to explain why "Subpoenas to reporters threaten the

7 free flow of information and compromise their ability to report the news.

8 Compulsory process threatens our ability to cover as broadly as possible

9 controversial public interest. They oppose subpoenas not because they

10 believe the press is entitled to special privileges but because coerced

11 testimony of reporters impairs the news gathering function, which is so

12 important to democracy. And these concerns are particularly appropriate

13 in the context of war zone reporting, war correspondents who take the

14 witness stand risk being perceived by potential sources as an

15 investigative arm of a judicial system, government or private parties.

16 That perceived lack of independence threatens a journalist's ability to

17 obtain information about conflicts. It is questionable whether the

18 defendant in this case --"

19 THE INTERPRETER: Please slow down. Please.

20 JUDGE AGIUS: Mr. Robertson, again, please slow down.

21 MR. ROBERTSON: Sorry. "In 1993 if he knew that one or both of

22 them would testify against him."

23 And stepping -- dealing with that point for a moment, the

24 Prosecution in its reply argues that this application has nothing to do

25 with confidential sources. But just imagine what those sources might

Page 5382

1 think if they have risked their life to tell a journalist what is

2 happening in a conflict zone, as indeed one or two members of the SS

3 risked their life to tell Catholic priests and journalists what was really

4 happening in the concentration camps. If they see at this court -- or at

5 a international court that very journalist on whose confidentiality their

6 lives depend up in the witness box forced to testify about what he was

7 doing in the country at about the time they spoke to him, just imagine the

8 apprehension of those sources. Just imagine their anxiety for their own

9 lives in that situation where the man they've entrusted that life with to

10 give vital information -- indeed the woman -- is having their notebooks

11 rifled by Defence counsel - quite properly - is answering questions for

12 days on end about what they're doing and who they were seeing. That is a

13 situation to be avoided we say not at all costs but unless the cost is the

14 conviction of the innocent or the acquittal of the guilty. And

15 confidential sources while they are not the subject of this application

16 are nonetheless part -- their protection is part of the public interest

17 reason we make it.

18 Then Mr. Jones goes on to point out in the penultimate paragraph

19 that "If Washington Post reporters become identified as would-be

20 witnesses, their personal safety could be compromised and the deaths of

21 journalists killed in conflict zones have been attributed in many cases to

22 government or armed paramilitary objections to their work."

23 So that is the statement from the publisher that journalist

24 organisations feel strongly about the matter is clear from -- at tab 3 and

25 the statement from the international federation of journalists. And the

Page 5383

1 last paragraph on that page puts it in a nutshell. Two lines from the

2 bottom "The possibility of such intimidation is greatly increased if it

3 becomes the practice to subpoena journalists to give testimony to what

4 they see in the course of their work. And their situation becomes ever

5 more dangerous if their independent observer status, similar to that of

6 humanitarian workers, Red Cross workers, and medical staff, becomes

7 compromised."

8 And I shall show the Court in due course the Geneva Conventions

9 which way back in 1949 offered some protection to the journalist in combat

10 zones by ensuring that his or her neutrality should be respected by the

11 warring parties. So that is the position of journalist organisations.

12 The -- at tab 4, Your Honours will find the statement of

13 Mr. Phillip Knightley, who is one of the greatest living investigative

14 journalists and is well known for writing the classic book about the war

15 correspondent, by no means uncritical book, as you see from its title "The

16 first casualty. The war correspondent as hero, propagandist, and myth

17 maker, from the -- it should be from the Crimea to Kosovo." And so

18 Mr. Knightley is by no means concerned to pat his own profession on the

19 back. But at paragraph 6 he makes the point about "War correspondents

20 having to endure the hostility of just about everyone else in the battle

21 zone. The military, even one zone, consider the media a menace and would

22 dearly love to get on with winning the war without having war

23 correspondents looking over their shoulder." And so he talks about the

24 enormous responsibility of the war correspondent.

25 And at paragraph 10, he says: "In order to function, such a

Page 5384

1 correspondent has to be seen by all parties as objective and independent

2 ad hoc to no one, thoroughly trustworthy and determined to publish the

3 truth. For such a person to be called later as a witness in a war crimes

4 trial would mean that no one would ever again agree to be interviewed by

5 them; their sources would dry up; in effect, their career as a war

6 correspondent would be over. And then the danger of having them deceived

7 as playing a double game."

8 And then at 13, he refers to the Red Cross seminar on the war

9 correspondent and the dangers of making them compellable.

10 And at 14, "It is my considered opinion that any journalist who is

11 later a witness at a war crimes trial could be considered by a participant

12 or source to have been masquerading as a journalist when his real role was

13 to gather evidence of war crimes. Journalists to do their job properly

14 must have that independence and must not act or be seen as acting as an

15 arm of the Prosecution. They are not policemen. They are journalists."

16 And then at 5, we have Mr. Gutman's statement. He is a

17 correspondent who's published a guide for journalists in covering war

18 zones, which guide had an introduction by Richard Goldstone, who of course

19 was the judge who was the first chief prosecutor. And if I can take you

20 to his -- Judge Goldstone's view of this issue is to be found at tab 6 in

21 his forward to Mr. Gutman's book. And this is a book that, as I say, is

22 for journalists and others to educate them about crimes against humanity

23 and the importance of courts like this. And if I could -- the second

24 paragraph -- the second paragraph on the first page, just below the

25 paragraph in heavy type, he writes: "Perhaps the most dramatic recent

Page 5385

1 example of the impact of war reporting is the establishment of this

2 Tribunal. Visual and written reports of the plight of the victims of

3 ethnic cleansing in Bosnia" -- and Mr. Randal's report in this case and

4 others is one of them -- "jolted the security council into taking the

5 unprecedented step of creating the court." And the last sentence in that

6 paragraph: "There can be no doubt it was media exposure that triggered

7 the decision."

8 And then in the next paragraph, he admits that in his first year

9 of office he spent a substantial part of his time briefing journalists to

10 explain the importance of the court.

11 Then over the page, the first paragraph at the top: "The

12 International Community is on its way to creating a court which has now

13 been created. It's time to ask what lessons have been learnt." He talks

14 about the difficult challenge of conflict reporting, the lack of public

15 understanding of humanitarian law. But he adds this: "The relationship

16 between war correspondents and the international courts has already

17 created a tension." And here we are to see if that tension can be

18 dissipated by an appropriate rule formulation. "As international

19 tribunals are established," he go goes on, "journalism has gained a new

20 and as yet undefined dimension. Journalists have very different mandates,

21 et cetera. The two functions should not be confused." And he says this,

22 which you may think is really a restatement of Mr. Knightley's

23 statement: "It is important that reporters stay reporters, that is,

24 uncover and write the story and the story behind the story for the general

25 public."

Page 5386

1 And then over the page at the very top, he talks about the -- the

2 need, having talked about the dangers of journalists, the risks they take

3 upon themselves. Four lines from the top of the last page: "Hence,

4 there's an even greater need for measures to protect journalists." And

5 then skipping over the -- he talks of the Tribunal. And then the next

6 paragraph is the important one -- or next two are the ones upon which we

7 rely: "Should the role of reporters extend to taking part in Tribunal

8 prosecutions? This is not covered in the conventions nor is it likely to

9 be. Not infrequently journalists come across evidence of war crimes as

10 eyewitnesses in discovering a mass grave or through being privy to

11 statements made by commanders in the heat of the action." That's this

12 case, in a sense. "Like aid workers and Red Cross or Red Crescent

13 delegates. If reporters become identified as would-be witnesses, their

14 safety and future ability to be present at a field of battle will be

15 compromised. In my opinion, the law takes too little account of that

16 reality. And this, I would therefore, support a rule of law to protect

17 journalists from becoming unwilling witnesses in situations that would

18 place them or their colleagues in future jeopardy. As already indicated,

19 the same should apply to humanitarian aid workers and Red Cross or Red

20 Crescent delegates. That was a prescient statement in view of the

21 decision in Simic. They should not be compelled to testify less they give

22 up their ability to work in the field. But they may, of course, testify

23 voluntarily."

24 Well, if that were a court judgement, we would be relying upon

25 it. It hits the nail right on the head. It is the rationale for this

Page 5387

1 application stated powerfully but reasonably and sensibly, as one would

2 expect, from Judge Goldstone. He does not go on to formulate the test.

3 It may be that he's arguing for an absolute immunity. We're certainly

4 doing nothing of that sort, but it may be that had he put his mind to it,

5 he would have formulated a test similar to the one that we have invited.

6 I think the -- they are the witness statements. And I don't think

7 I need bother -- oh, at 9 you will see the Geneva Conventions protections.

8 And of course this was back in 1949, but it was -- and there was the

9 protocol in 1977 that "Measures for protection of journalists.

10 Journalists engaged in dangerous professional missions should be

11 considered as civilians provided." In 2, "They take no action adversely

12 affecting their status but they are accredited to a particular party."

13 Now, the significance of this is simply that under the Geneva

14 Conventions journalists are entitled to be accredited to one side or the

15 either in a war. They are given this neutral status as civilians -- in

16 other words, they must be treated with the same consideration as civilians

17 under -- protected under the Geneva Convention because they are not in

18 fact viewed as participants or as willing members of the force to whom

19 they're accredited unless they take action, as one or two journalists have

20 done over the years and been condemned for doing, of -- involving

21 themselves in one side's propaganda or even -- or taking up arms for

22 one -- for that side. So there the Geneva Convention we say recognises

23 through that rule the importance of protecting journalists in war

24 situations. And that is the basis for -- or the beginning of the

25 customary international law requirement that journalists be protected.

Page 5388

1 At 11, you will note the European position on protection of

2 sources. And this is as a result in part of Goodwin.

3 And then at tab 12 is the recommendation on the -- to the

4 Committee of Ministers that journalists should not be required to disclose

5 their sources of information. And paragraph 3 refers to the Goodwin

6 case.

7 And at 5, six lines down, after Goodwin is referred to the same

8 says that any disclosure of a source may have a chilling effect on the

9 readiness of future sources to provide journalists with information. And

10 it is in this case, we say, the chilling effect on the readiness of future

11 commanders, leaders, generals, and politicians in positions of power to

12 provide journalists with information. That is the public interest reason

13 for the qualified privilege or presumption that we seek.

14 At 13, there is another -- there is significantly the Committee of

15 Ministers set out the need to protect journalists in situations of

16 conflict and tension. And at 2, the appeal is made by the committee to

17 all member states of the Council of Europe to recognise that the right

18 of individuals and the general public to be informed about all matters of

19 public interest is especially important in situations of conflict and

20 tension. And at 3, they solemnly reaffirm that journalists working in

21 such situations without qualification entitled to the full protection of

22 such laws and treaties as apply to them, including, we would say, by full

23 protection the way in which the treaty policy can be developed or in

24 particular mercurial situations like this.

25 And at -- finally, at tab 14, you will see the recommendation

Page 5389

1 adopted in 1996 by the Committee of Ministers on the protection of

2 journalists in situation of conflict, which preamble, begins, by noting

3 the danger that journalists face and the importance of their work. On the

4 second page -- or at the bottom of the first page and the top of the

5 second page it notes the Geneva protocols, which I've shown to the Court,

6 protecting journalists by having their neutral status confirmed, although

7 they were attached to a force. Four lines down: "Convinced that it is

8 necessary to reaffirm these guarantees to ensure they are respected with a

9 view to strengthening the protection of journalists in situations of

10 conflict and tension, stressing that any interference must be exceptional,

11 be kept to a minimum, and be strictly in line with relevant human rights

12 instruments." We rely on that passage.

13 "Compulsory testimony is interfering with the work of journalists.

14 So it should be exceptional and kept to a minimum. And the formulation of

15 the rule that we suggest or any similar formulation is designed to ensure

16 that journalists are only compelled to testify in exceptional cases." And

17 then it recommends that the governments be guided in their actions and

18 policies by these principles. And of course, we would invite the Court to

19 accept that it is perhaps within that predecessor.

20 Could I go back, if I may. I've dealt with all the appendices

21 now -- to tab 1, to our argument, and deal very briefly with the --

22 JUDGE AGIUS: Before you do so, Mr. Robertson. Usually we would

23 have a break in about ten minutes' time. If you can conclude this part of

24 the argument within those ten minutes, then go ahead. If you think you

25 require more, then we'll break now and you continue afterwards.

Page 5390

1 MR. ROBERTSON: Could we in that event break now. And I hope I

2 can conclude my argument --

3 JUDGE AGIUS: Yes, certainly.

4 MR. ROBERTSON: -- Quite shortly afterwards.

5 JUDGE AGIUS: Okay. Thank you. So we'll have -- would everyone

6 agree if we restrict the break to about 20 minutes? Okay. So we'll break

7 for 20 minutes, please.

8 --- Recess taken at 10.20 a.m.

9 --- On resuming at 10.41 a.m.

10 JUDGE AGIUS: Yes, Mr. Robertson. You may proceed.

11 MR. ROBERTSON: Your Honours, I now take Your Honours back, if I

12 may, to our application in paragraph 15, where we make the point that the

13 power to subpoena is not absolute. And we give examples of well-known

14 categories of immunity. We don't suggest that the journalist's immunity

15 is as extensive as the lawyer's immunity or the state official's immunity

16 or indeed the Red Cross official's immunity. But it is nonetheless

17 significant that in the analysis that was given in Simic -- and we set it

18 out at paragraph 18 -- that what the Court was doing was in fact looking

19 at the protection given to Red Cross workers by the Geneva Conventions and

20 implying from that a powerful public interest privilege, so powerful

21 indeed that in the view of the majority there could be no question but

22 that the Red Cross and Red Crescent as organisations could compel their

23 former employees not to testify. We find that a most absolute approach

24 which is not echoed by Judge Hunt, who does apply the more conventional

25 balancing test. But nonetheless again draws from the Geneva Conventions

Page 5391

1 and the fact that there is a protection for the Red Cross there as there

2 is a protection for journalists a policy, a public interest policy that we

3 say, is present on the facts of this case. There is a public interest

4 policy that journalists be not routinely compellable.

5 Mr. Randal happens to be retired, but Your Honours I'm sure can

6 envisage and know that there are many journalist who have been active in

7 the area since the early 1990s who in this Tribunal's jurisdiction over

8 the area is continuing, and those journalists will go back to Belgrade, to

9 Pristina, to places in Bosnia and will face if summonsed, if they have

10 given evidence, and this is televised and they are perceived to have given

11 evidence against the defendant or indeed on behalf of the defendant, they

12 will be seen as party pre. They will be -- I'm not suggesting that they

13 will be assaulted. Although that may be the strength of feeling that

14 exists in some places. It may put them in some physical danger. But more

15 importantly for their work, people who sympathise with the party against

16 whom they have been perceived as testifying will not talk to them or will

17 act aggressively against them. And it may be that journalists compelled

18 to testify will in effect be forced to end their work in the area. So

19 that is the -- what we draw from the Red Cross cases.

20 And we mention at 19 the Trial Chamber's decision refusing to

21 subpoena an interpreter. I would imagine that that -- one can conceive of

22 situations where an interpreter can give very relevant evidence. And one

23 suspects that if that position were to recur, there would be a balancing

24 operation after the -- after a presumption. But -- and then

25 Commander-in-Chief. And we note the position at the ICC and that this

Page 5392

1 case will be a precedent for it.

2 At 23, we summarise the position that there is no absolute power

3 in the court under Rule 54. There are clear limitations, policy

4 limitations on the application in 54, and that one of them supports the

5 qualification. And we set out Judge Hunt's approach in Simic as similar

6 to the approach that we would urge. He use it is words -- I think in our

7 formulation we had suggested that the evidence should be not only

8 admissible but of crucial importance to the determination of guilt or

9 innocence. Judge Hunt says at the bottom of that quote at paragraph 24

10 that "The test should be essential or indispensable," he suggests, as the

11 basis for that particular test, when the balancing act is being carried

12 out. And so we say that -- and this was, of course, overriding the Red

13 Cross's decision not to let the employee testify when the evidence is

14 vital to establish innocence or vital to establish guilt.

15 And then at 25, we draw again on Judge Goldstone's foreword. And

16 then at -- and set out the matters that I have read from him at 27. And

17 at 28 note the Red Cross's commentary on Article 79 of the Geneva

18 Conventions which sets out the protocols protection of journalists. At

19 the top of page 11, the Red Cross says "The circumstances of armed

20 conflict expose journalists exercising their profession to dangers which

21 often exceed the level of danger normally encountered by civilians." That

22 is important because the cases upon which the Prosecution rely are cases

23 notably Branzburg and Hayes, in which the protection is sought in a

24 country that is at peace where there is no civil war and it was only a

25 protection to go in secret to the grand jury. It wasn't a protection at

Page 5393

1 trial. But we'll come to that.

2 The Red Cross says that special rules are required for journalists

3 who were imperiled by their professional duties in the context of armed

4 conflict.

5 Of the -- there are only three cases that I need show the Court.

6 The -- at paragraph 30, we refer to the -- it's a long case, and you'll

7 find it in the bundle. It's a famous case. I think Judge Burgental

8 [phoen] and others at the inter-American court decided that journalists

9 should not be subject to licensing by the state. A journalist is one who

10 exercises by occupation a right of freedom of expression which is

11 available to all under the human rights treaties. But the -- insofar as

12 the Prosecution case says, journalists aren't noted -- noticed by

13 international law, international law takes no concern about journalists.

14 That's not so. This case -- famous case quite early in the -- in 1985

15 established that journalists do have international law protection.

16 The case of Goodwin, I think we have -- you will find at -- in

17 your bundle at 9.

18 Does -- do Your Honours have the case bundles?


20 MR. ROBERTSON: It is bundle 9 -- it is tab 9.


22 MR. ROBERTSON: It's the Goodwin case.

23 JUDGE AGIUS: Yes. It's -- in my bundle at least, it's number 6

24 of 9 documents.

25 MR. ROBERTSON: Number 6?

Page 5394

1 JUDGE AGIUS: Number 6, yes.

2 MR. ROBERTSON: I'm obliged.

3 The bundle 6, then, if I could just show you the -- it was a full

4 Chamber of the European --

5 JUDGE AGIUS: Yes. I'm aware of that court, Mr. Robertson.

6 MR. ROBERTSON: And the -- the discussion that's relevant begins

7 at paragraph 37. And the question of whether the interference was

8 necessary in a democratic society, one of the important facts was that the

9 journalist -- the article that had been written by the journalist was the

10 subject of an injunction which restrained publication of the secret. So

11 the -- the plaintiff had achieved some measure of protection, and he

12 wanted more by identifying the source that he suspected had stolen the

13 secret plan. And the fact that there was some protection in place by way

14 of the injunction against publication was important when the Court went on

15 to consider proportionality.

16 And we say, on the same basis, that the fact that you have -- the

17 Court has Mr. Randal's statement and has the article is -- gives it

18 sufficient material already.

19 Paragraph 39 is the paragraph that we rely upon, particularly in

20 the second -- the second paragraph of that paragraph, halfway down:

21 "Having set out the resolutions by the Committee of Ministers, without

22 such protection, sources may be deterred from assisting the press in

23 informing the public on matters of public interest. As a result, the

24 vital public watchdog role of the press may be undermined and the ability

25 of the press to provide accurate and reliable information may be adversely

Page 5395

1 affected."

2 So that establishes the reason for the privilege is the public

3 watchdog role of the press and the need to ensure -- to encourage

4 information to be supplied to it. That is the same public interest that

5 we rely upon, and it's all the more crucial, we say, in situations of war

6 reporting. This case arose from the most specific environment of a

7 business reporter.

8 And so at 40, you will find the necessity for any coercive action

9 must be convincingly established to answer to a pressing social need.

10 At 42, the proportionality principle. The plaintiff had some

11 measure of protection and didn't need to force the journalist to testify.

12 And at 46, there was not a reasonable relationship of

13 proportionality between the aim pursued by the disclosure order, and the

14 means deployed to achieve that aim.

15 That is the -- another example of international law giving

16 protection to journalists, albeit in peacetime, for the public policy

17 reasons that are even more acute in times of war.

18 Moving on, if I may, in our argument to the section on domestic

19 protection, we cite a number of cases from the United States. And I --

20 the Prosecution has said, "Well, wait a minute. The controlling case in

21 the United States is Branzburg and Hayes, which did not give the

22 journalist the protection of the kind that you allege.

23 Can I make these points on Branzburg: Firstly, it was a case in

24 1972. The law in both countries has moved on. Secondly, it was a

25 decision that needs to be carefully analysed. The Prosecution has quoted

Page 5396

1 only from the four-judge majority. But there were four judges who held

2 that the journalistic privilege did indeed exist. Justice Douglas, who

3 said it was absolute, and the other judges - Brennan, Stewart and

4 Marshall, three judges whose judgements have tended to be accepted by

5 international human rights courts - who held that there was a qualified

6 privilege. So it was four-all. And the crucial judgement is that short

7 judgement in the middle of Mr. Justice Powell.

8 If I may -- and I think that's described as elliptical. I don't

9 know whether you -- what tab number you have Branzburg at. I think we are

10 both using the same Internet version of it. But Justice Powell's

11 decision, which has in fact allowed state courts and federal courts to

12 develop journalistic qualified privilege in the States, is at page 24 of

13 Branzburg, at -- on the right-hand side. It's described by the

14 minority, Stewart, Brennan, and Marshall, as an enigmatic concurring

15 opinion. They say, at paragraph 725: "Mr. Justice Powell's enigmatic

16 concurring opinion gives hope of a flexible view in the future." And they

17 go on to state the privilege. But the -- Mr. Justice Powell, at page 24 -

18 it's paragraph 709 - begins by saying -- emphasising the limited nature of

19 the Court's holding. And at 710, five lines down the second paragraph, he

20 says: "Indeed, if the newsman is called upon to give information bearing

21 a remote tenuous relationship to the subject of investigation or if he

22 believes testimony implicates confidential source relationship without

23 legitimate need of law enforcement, he will have access to the court on a

24 motion to quash and an appropriate protective order may be entered. The

25 asserted claim to privilege should be judged on its facts by the striking

Page 5397

1 of a proper balance between freedom of the press and the obligation of

2 citizens to give relevant testimony."

3 So that is all that Justice Powell says. That is the swing vote

4 on the Court. And as over the page, at 725, you will see the dissenters,

5 who are all for a qualified privilege, say that that enigmatic concurring

6 opinion gives hope of a more flexible view.

7 And at paragraph 34, we set out some cases where the flexible view

8 has been taken where the courts in America have held that the public

9 interest is an interest of sufficient social importance to justify some

10 incidental sacrifice of sources and facts needed in the administration of

11 justice. And they talk about the state shield laws.

12 And at 35, importantly, "The reporter's privilege shields not only

13 the identity of sources but the information acquired by a reporter

14 regardless of whether the information or the source is confidential." And

15 that is in Shoen, which is one of the cases that we have put before the

16 Court. And we cite that the -- the quote: "The compelled production of a

17 reporter's resource materials can constitute a significant intrusion."

18 And "Like the compelled disclosure of confidential sources, it may

19 undercut the public policy favouring the free flow of information which is

20 the foundation of the privilege."

21 And then at 36, we say, two lines down, that as a result of the

22 development of American law since Branzburg, the party seeking

23 news-gathering information must show two things; first of all that

24 disclosure must go to the heart of the matter, which is perhaps a -- an

25 appropriate way of putting it in common terms. The crunch is whether --

Page 5398

1 crunch question is whether it goes to the heart of the matter or is

2 crucial to his case. It's not enough that information is just relevant.

3 Secondly, "The party seeking disclosure must demonstrate that he

4 or she has 'exhausted every reasonable alternative source of

5 information.'" Well, then, we say they are the formulations of A and B in

6 our formulation and they would be perfectly acceptable. That seems to be

7 the -- the point to which American law has reached.

8 At 37, we note the Justice Department guidelines in America create

9 a presumption against subpoenaing members of the news media. They've got

10 to get the approval of the attorney general; they've got to balance the

11 First Amendment interest with law enforcement; they've got to take all

12 reasonable attempts to get the information from other sources; it's got

13 to be essential, and so on.

14 And I think we have put the -- I think you have -- or should have

15 somewhere - and could I just check - a document called the Code of Federal

16 Regulations, title 28, Department of Justice Policy. And we've extracted

17 from that the policy with regard to the issuance of subpoenas to members

18 of the news media.

19 Do Your Honours have that? If not, we will hand up copies.

20 JUDGE AGIUS: Mr. Robertson, in the little time that we have had

21 available, I don't recall coming across the document you've just

22 mentioned.

23 MR. ROBERTSON: Well, I will supply additional copies then,

24 because --

25 JUDGE AGIUS: I'm checking again, but it doesn't seem to be here,

Page 5399

1 unless it was attached to the first bundle that I received yesterday.

2 MR. ROBERTSON: I see. Yes. It would appear that Your Honours

3 have not been given, or it hasn't got to Your Honours yet, the bundle of

4 cases that we put in. I think you have the Prosecution bundle and not

5 ours.

6 JUDGE AGIUS: No, no. I have your -- your bundle.

7 MR. ROBERTSON: Oh. Is it the authority's bundle, the bundle of

8 cases?

9 JUDGE AGIUS: Yes. Yes. Exactly. But the document you've just

10 mentioned is not included.

11 MS. KORNER: I don't think we've got this either, actually. I'm

12 not making a great point on it, but we haven't got it.

13 MR. ROBERTSON: I think you handed up your bundle from our list.

14 So that -- well, in --

15 JUDGE AGIUS: Anyway, it's not a problem. I mean, you can make it

16 available at your earliest opportunity, Mr. Robertson.

17 MR. ROBERTSON: Yes. And the other case -- the only other case

18 that I would refer to is the one -- the United Kingdom case at paragraph

19 38, which is Senior v. Holdsworth. And it was a decision that was an

20 important decision in English law.

21 JUDGE AGIUS: [Microphone not activated] Yes. I correct myself.

22 I do have it. This is an International Code of Practice for the Safe

23 Conduct of Journalism.

24 MR. ROBERTSON: That is our primary bundle. Let me just give you,

25 so that you have the copies of our case bundle --

Page 5400

1 MS. KORNER: I wonder if we could be given one as well, if there's

2 a spare copy going.

3 MR. ROBERTSON: We haven't extracted the Tribunal cases. The

4 cases begin at 7 with the Sener and Turkey. Then there is, at 8, there's

5 the inter-American case I mentioned. Then at 9, Goodwin, which you have

6 looked at in the Prosecution bundle. Then 10, 11, 12, 13, 14, 15 are

7 American cases. Tab 16 is the Internal Guidelines of the Department of

8 justice, which I have -- which perhaps I can just show you is the policy

9 with regard to the issuance of subpoenas. And that's the policy that I've

10 described. This is the document that the department of justice issues to

11 its prosecutors and the guidelines that must be adhered to. And you see

12 guideline A in determining whether to request issuance of a subpoena, the

13 approach must be to strike the proper balance between the public interest

14 in ideas and information and in effective law enforcement; B, all

15 reasonable steps to go to alternative sources; C, negotiate with the media

16 before issuing a subpoena and so forth. E is you've got to get the

17 express approval of the attorney general. And then at F(1), the attorney

18 general's authorisation will only be given in certain circumstances. The

19 information sought must be essential with reference directly to

20 establishing guilt or innocence. The subpoena should not be used for

21 non-essential information. And 3 is the -- try and get it from other

22 sources. 4, the use of subpoenas should be limited to verification of

23 published information, and so forth. So that shows what the position

24 really is, and it does put into perspective the claims that the

25 Prosecution make on the basis of Branzburg and Hayes, an inaccurate

Page 5401

1 reading of it of a case that has long been superseded by the cases that we

2 have presented and the code for federal prosecutors.

3 The position in England we set out at paragraph 38. And you will

4 find the judgement in Senior v. Holdsworth at tab 17, just after the code

5 for federal prosecutors. That was a case which was argued interestingly

6 enough by Gordon Slynn, who became at page 27 -- who played various

7 important parts in European positions before going to the House of Lords,

8 where he sits today.

9 Lord Denning set out -- whose judgement begins at page 30 --

10 explains the facts and the subpoena. And the passages that we rely upon

11 are at page 34 and 35. And at the bottom where he concludes that the

12 Court has power to issue the subpoena for the untransmitted film, the

13 Court should -- in the last line "Only exercise this power when the film

14 has a direct and important place in the evidence." And so we can go back,

15 in fact, to the -- to paragraph 38, where Lord Denning's words about the

16 "Special position of the journalist who gathers news of public concern.

17 The courts respect his work and will not hamper it more than necessary."

18 And he talks about the public interest in seeing that confidences are

19 respected and that newsmen are not hampered by fear of being compelled to

20 disclose all the information which comes their way. So "The judge will

21 not direct the newsperson to answer unless it is not only relevant but it

22 is a proper and necessary question to be put." So there is the Lord

23 Denning putting the test as a presumption in a non-confidential case. The

24 case arose from news film which had been shot at a pop festival of a

25 disturbance and the Court refused to allow the party to subpoena the

Page 5402

1 photographers to show the film. There was nothing confidential about them

2 but the public interest was against the compulsion.

3 And then the case of Bright is the next case. We deal with it at

4 paragraph 39. It involved a member of the British security service who

5 had spoken to the press and sought political asylum, which he was actually

6 given by the French courts in Paris, and had accused the British secret

7 service of seeking to assassinate Colonel Kadafi. And there was no

8 confidentiality again involved. The police -- his letter again that he

9 had written to the newspaper and the newspaper inquiries about him. But

10 even in national security case safeguards were imposed on -- for the

11 press and the Court held that because there was a public interest at

12 stake, compelling evidence was needed by the police to demonstrate that

13 the subpoena would override that public interest.

14 So at 41 we state our preliminary conclusion on the case law in

15 the way that I've identified. And I needn't perhaps read it. It really

16 sums up what I've been advocating to the Court. The theme in the case

17 law -- the fact that protection does exist for journalists in

18 international law -- it has since the Geneva Convention, since the

19 inter-American court, since the European Court. It's a protection based

20 on public interest in the watchdog role. It is crucial, most important in

21 war zone reporting. And this Court can put that protection into Tribunal

22 law in -- either by granting a public interest privilege qualified in the

23 way that we've suggested or by creating from its inherent power a

24 presumption against issuing compulsory process against journalists except

25 in those extraordinary situations.

Page 5403

1 That is the principle and that is what I wish to really address

2 you on. There are some specific considerations in relation to Mr. Randal

3 and when -- when the Court comes to apply whatever it considers to be the

4 right principle to the fact of Mr. Randal's case. We simply note that

5 the -- it could not be said that this evidence is vital to convict the

6 defendant. It is strictly hearsay. Mr. Randal cannot in the

7 circumstances, because he doesn't know the language, give evidence to the

8 Court confirming that those were the precise words said by the defendant.

9 And so Mr. Randal is not a voluntary witness. He does not wish to give

10 evidence. He wishes to assert the privilege which we have argued that he

11 has or alternatively have the benefit of the presumption against

12 testifying. This is not a case that meets the requirements however they

13 are formulated in -- in either of a privilege or of a presumption.

14 And Your Honours, thank you for listening to me.

15 JUDGE AGIUS: Mr. Robertson, before you sit down, I've noticed

16 that you have omitted completely any reference to the Rules and practice

17 of this Tribunal as they relate to protective measures that are extended

18 to sensitive witnesses, in particular -- particularly witnesses that may

19 be exposed to physical danger, personal danger, if details to their

20 particulars or even details as to the fact that they have given evidence

21 in this Tribunal is made public. Do you think that a reference to these

22 provisions is relevant to your argument or not?

23 MR. ROBERTSON: We did consider whether -- the relevance. And

24 we're very grateful to Your Honour for pointing out that it could have

25 relevance. But we were inclined to think that the principle for which we

Page 5404

1 contend would not be satisfactorily dealt with by protective measures,

2 because firstly, the journalist -- protective measures may be appropriate

3 if the journalist willingly testifies but says, "I want to do it in

4 private or I want to do it without my address being given or without my

5 name being given." A journalist who willingly testifies could ask and --

6 and maybe in a situation of asking for protective measures. But we do not

7 think -- and certainly this case doesn't raise the issue of protective

8 measures. We do not think that compelling a journalist to testify but

9 giving him, for example, anonymity or a closed hearing would really be

10 appropriate. Journalists who would not wish themselves to be perceived as

11 participating in a closed hearing, because all sorts of rumours would get

12 around as to what they were saying. Either the Prosecution or the Defence

13 out of court could set those rumours off, or it may be that they would

14 arise anyway. Here is a man to whom you have, if you're a source,

15 entrusted perhaps your life. Here is a man who has to go back to a

16 conflict zone, and he's going into this secret court giving evidence for

17 the Prosecution -- that much would probably get known. It would be -- it

18 would be inappropriate, we say, to compel him but give him the benefit of

19 such measures which may seal his fate or seal the fate of his informants

20 far more readily than any evidence that he were actually to give.

21 In any event, we suspect that attempting to cover up the name

22 of -- the name of the journalist, which of course is not this case.

23 Mr. Randal is -- is known to the defendant. But attempting to cover up

24 the name of the journalist would be equally problematic because certainly

25 security organisations, states parties would know in all probability

Page 5405

1 who he was.

2 So for that reason, while we could take advantage, I suppose,

3 of the fact that protective measures exist, the -- it would be

4 inappropriate, we say, to compel the journalist with the offer of

5 protective measures. And of course, it's not just a position with one

6 journalist. We say that routine compellability does put future

7 journalists at risk. So that's how we would deal with the question of

8 protective measures.

9 JUDGE AGIUS: I thank you, Mr. Robertson.

10 Perhaps -- yes, Ms. Korner now.

11 MS. KORNER: Yes. May it please Your Honours.

12 Your Honours, I think one ought to remind ourselves of how this

13 matter has come before Your Honours in the first place, the actual facts,

14 because certainly part of our submission is that Your Honours are being

15 asked to make a ruling effectively of principle but we will be saying on a

16 most unmeritorious set of facts before Your Honours.

17 Your Honours, on February the 11th, 1993 the Washington Post

18 published the article by Mr. Randal which is the subject of this

19 argument. Your Honours, I don't know whether Your Honours have got that

20 to hand, because it's worth reminding ourselves when looking at the

21 principle of whether or not what the journalist has to say goes directly

22 to the heart of the case is a matter which Your Honours will have to look

23 at when exercising what we would suggest is Your Honours' discretion in

24 the matter.

25 Do Your Honours have that article?

Page 5406


2 MS. KORNER: Can I hand -- although you've had it before, I did

3 bring three more copies.

4 JUDGE AGIUS: Yes. We've seen it obviously.

5 THE INTERPRETER: Might the interpreters have a copy of the

6 article as well.

7 MS. KORNER: No, I don't. This article has been handed out on a

8 number of occasions. I simply brought more copies for Their Honours.

9 Your Honours, Mr. Randal conducted in writing an article about

10 effectively the -- actually, I've got one more copy. I noticed that Her

11 Honour Judge Janu had to give it up. I've got one more.

12 Could Your Honours forgive me while I just look for ...

13 THE INTERPRETER: Again, might the interpreters be given copies of

14 the article, please.

15 MS. KORNER: While writing an article about the situation in Banja

16 Luka in February of 1993, interviewed -- if Your Honours look at page 2

17 it's about -- the penultimate paragraph, what is described as Bosnian

18 housing administrator Radoslav Brdjanin, an avowed radical Serb

19 nationalist, who said, in quotes: "Personally argued that those unwilling

20 to defend Serb territory must be moved out but that the Serb political

21 leadership so far had not agreed. He said he believes the exodus of

22 non-Serbs should be carried out peacefully so as to create an ethically

23 clean space through voluntary movement. Muslims and Croats, he said,

24 should not be killed but should be allowed to leave and good riddance."

25 Now, Your Honour, that, in our submission, goes directly to the

Page 5407

1 heart of this case. It is the Prosecution's contention that the reason

2 for the crimes that we allege were carried out by Radoslav Brdjanin

3 together with his co-accused Momir Talic and others was to rid the

4 territory of the non-Serbian population.

5 Now, Your Honours, there's no indication from that article as

6 published that there was an interpreter; although, I suppose, common sense

7 would have indicated that it was likely that Mr. Randal spoke the

8 language. But that only became clear when he made a voluntary - and I

9 emphasise this - a voluntary statement -- albeit with some reluctance,

10 and we accept that -- to an investigator from the Office of the

11 Prosecutor. And it was then that it became clear that another journalist

12 who did speak the language had been acting as an interpreter.

13 Now, we've attached to the copies that Your Honour have the

14 article that that journalist wrote some three days later. And it does not

15 contain the quotes that Mr. Randal had in his article. And one of the

16 reasons, apart from anything else, that Mr. Randal was seen and asked to

17 make a statement was that he did in his article have those quotes.

18 Now, Your Honour, leaving aside for the moment a matter which is

19 touched upon, which is that we have not sought to issue a summons against

20 the other journalist. Your Honour, I don't think that's the place to go

21 into it, and I don't think it's really pressed I note, with any great

22 force by Mr. Robertson in his oral argument to you.

23 The issue is, Your Honour, is a journalist and in this particular

24 case a journalist who has made a statement to the Prosecution compellable

25 to testify about the matters there referred to.

Page 5408

1 Now, Your Honour, there are, it seems to us, two issues: One

2 which is a matter of general principle -- in other words, may journalists

3 as a class of society be compelled to testify in a criminal trial, in an

4 international criminal trial, if they can provide relevant -- and I'm

5 using a quote from a case that I'm going to return to because it is one of

6 the leading cases even -- although it was decided in 1963, which is the

7 case of the Queen against Mulholland and Foster -- relevant and useful

8 purpose to the proceedings at hand. In other words, does it go to a --

9 an issue which is material to the case.

10 Your Honour, from that, one follows with this: If the answer to

11 that is yes, and we suggest on all authority up until today the, as it

12 were, privilege or the exemption from testifying, which the journalists

13 themselves as you've seen from the editor's statement and the various

14 other journalists -- that the journalists themselves would wish to have a

15 complete blanket privilege from being compelled to testify about matters

16 that they have witnesses -- they have witnessed - I'm sorry - or about how

17 that information has been obtained. And for obvious reasons as we will be

18 submitting, no court has agreed to grant them that exemption.

19 But Your Honour, if that is right, that there cannot be a complete

20 exemption from a compulsion to testify, then one has to go, as it were, a

21 step further. Does it come down to this, a matter of fact and degree in

22 each case whether the courts should enforce a compulsion by way of

23 subpoena to testify? In other words, does it depend on the nature of the

24 offence? Does the evidence which it appears the journalist can give go to

25 a major issue rather than a peripheral one? And effectively, what is

Page 5409

1 argued for here, that war reporter, reporters -- journalists who report

2 from theatres of conflict should be given an exemption as a special class

3 within the class of journalism as a whole. Your Honours, that's the first

4 matter. And that's -- really the issue of principle that Your Honours are

5 being asked to rule upon.

6 The second matter is on the facts of this case, should Mr. Randal

7 be compelled to testify on the basis of the witness statement that he made

8 to the Prosecution?

9 Now, Your Honours, can I go back to the first issue. Should

10 journalists as a class of person be exempt from being compelled to testify

11 about their sources or matters they have in fact seen or interviews that

12 they have conducted with persons who stand accused or can give relevant

13 evidence? Your Honour, we submit this, that in every jurisdiction that

14 Your Honours looked at, both in the United States and in the United

15 Kingdom -- I regret to say we haven't investigated what happens in

16 European countries due to the limited time. But I'm sure that where

17 there's such an exemption, it would have been raised by Mr. Robertson.

18 JUDGE AGIUS: It's easily available. I downloaded it this

19 morning. I haven't gone through it, but it is there.

20 MS. KORNER: Yes. Well, Your Honours, as I say, because I think

21 we were all rather rushed on this --

22 JUDGE AGIUS: Yes. Exactly.

23 MS. KORNER: But can I say I know that -- or I'm sure that those

24 who instruct my learned friends would have produced that if there was

25 anything in their favour to show that.

Page 5410

1 Your Honours, the principle appears to be this, that there is no

2 privilege, there is no exemption for journalists testifying but there are

3 certain safeguards which the courts are prepared to put into place in

4 order to ensure as has been said over and over again the freedom of

5 information, the role which journalists undoubtedly play in bringing to

6 public attention crimes and other allied misdemeanours. But Your Honours,

7 to grant them the exemption that is sought -- and it's our submission

8 that -- even Mr. Robertson is not pursuing that one with much vigour --

9 namely they should never have to be compelled to testify -- were to give

10 them a unique status not granted to any other member of the public. And

11 journalists are no more than that. They have a job, but they are just

12 members of the public.

13 Your Honours, can I ask Your Honours to look first of all at the

14 case of Mulholland and Foster, which I think Your Honours -- I don't

15 know whether what bundle Your Honours are working off, ours or the

16 applicants.

17 JUDGE AGIUS: In this particular case, I think Mulholland --

18 MS. KORNER: In ours.

19 JUDGE AGIUS: Is easier to find in your bundle.

20 MS. KORNER: Yes.

21 I'm told that you got -- I'm told by Ms. Gustin you got a set.

22 MR. ROBERTSON: Sorry. I've got it.

23 MS. KORNER: You've got it.

24 JUDGE AGIUS: Yes, Ms. Korner.

25 MS. KORNER: I'm sorry.

Page 5411

1 Your Honour, this -- Lord Denning, who's been referred to by

2 Mr. Robertson in the later of Senior v. Holdsworth, to which I will

3 return, was one of -- as Mr. Robertson says, one of the leading judges in

4 the last century and is responsible, I think, for more or -- leading

5 judgements and almost anything else one can think of. This was -- this

6 case arose out of the Vassall spy saga in the early 1960s, and it was a

7 question of whether the journalist who had published articles about Mr.

8 Vassall and about really the lack of the British authorities to notice his

9 spying activities could be compelled to disclose the source of the

10 information.

11 And Your Honour, we must emphasise as we have already in our

12 argument on which I rely -- and I'm not going to go through it because I

13 know Your Honours will be a chance to read it later -- that all the cases

14 with one or two exceptions are of the question of journalists revealing

15 their sources. There are almost none that deal with the question of a

16 journalist who has published an article appearing to effectively confirm

17 that that article was truthful and accurate. And it's noteworthy, Your

18 Honour, that the Prosecution are prepared simply to put the article in to

19 save Mr. Randal testifying and the Defence -- and that is entirely their

20 right -- declined to agree, which we would also add shows the importance

21 of -- of this particular article.

22 Your Honour, with that digression, can I take, Your Honour, to

23 what was said by Lord Denning about journalists --

24 MR. ACKERMAN: Your Honour, I must at this point interrupt in

25 assert an objection.

Page 5412

1 JUDGE AGIUS: Yes, Mr. Ackerman.

2 MR. ACKERMAN: Ms. Korner says my objection shows the importance

3 of the particular article. And that's not the case. My objection is as

4 to the inaccuracy of the article, that it is an unfair representation of

5 the conversation, and that the report by journalist acts as a fair

6 representation of the conversation. And I suspect that the statements

7 that Mr. Randal put in there were a result of a misunderstanding of

8 translations from the other journalist. So I at least have a suspicion

9 that it's inaccurate. And I'm not -- I did not object on the basis that

10 she suggests to Your Honours, and I want to make that clear.

11 JUDGE AGIUS: Yes. I do recall Mr. Ackerman making that point

12 when we were discussing the issue.

13 MS. KORNER: Yes. Your Honour, apart from the fact -- I don't

14 want to get into argument about -- because that's not the point. It

15 doesn't detract from the point I'm making. Because if it was wholly

16 unimportant to any issue in this case, then whether or not the quotes were

17 accurate or inaccurate would not matter. And were it unimportant, the

18 Prosecution wouldn't be seeking to put this article in the way that it is.

19 Your Honour, may I now come back to --

20 JUDGE AGIUS: Yes, Ms. Korner.

21 MS. KORNER: -- Lord Denning's judgement. It's -- I should add

22 that it's reported in the All England Law Reports (1963) at 1 All England.

23 At the bottom of page 770, it is said -- and this is the second

24 point -- that "However relevant the questions were and however proper to

25 be answered for the purpose of the inquiry -- the journalist had declined

Page 5413

1 to answer the questions at the inquiry -- a journalist has a privilege by

2 law entitling him to refuse to give his source of information. The

3 journalist puts forward as his justification the pursuit of truth. It is

4 in the public interest, he says, that he should obtain information in

5 confidence and publish it to the world at large, for by so doing he brings

6 to public notice that which they should know. He can expose wrongdoing

7 and neglective duty which would otherwise go unremedied. He cannot get

8 this information, he says, unless he keeps the source of it secret. The

9 mouths of his informants will be closed to him if it is known that their

10 identity will be disclosed. So he claims to be entitled to publish all

11 his information without ever being under any obligation even when directed

12 by the Court or a judge to disclose whence he got it. It seems to me that

13 the journalist put the matter much too high. The only profession that I

14 know which is given a privilege from disclosing information to a court of

15 law is the legal profession, and then it is not the privilege of the

16 lawyer but of his client. Take the clergyman, the banker, or the medical

17 man. None of these is entitled to refuse to answer when directed to by a

18 judge. Let me not be mistaken. The judge will respect the confidences

19 which each member of these honourable professions receives in the course

20 of it and will not direct him to answer unless not only is it relevant but

21 also it is a proper and indeed necessary question in the course of justice

22 to be put and answered. A judge is the person entrusted on behalf of the

23 community to weigh these conflicting interests, to weigh on the one hand

24 the respect due to confidence in the profession and on the other hand the

25 respect due to confidence --" I'm sorry -- "and on the other hand the

Page 5414

1 ultimate interest of the community in justice being done, or in the case

2 of a tribunal such as this, in a proper investigation being made into

3 these serious allegations. If the judge determine that is the journalist

4 must answer, then no privilege will avail him to refuse."

5 Your Honour, they then go back to the facts. And if I can skip

6 that -- and no doubt if there's anything Mr. Robertson wants to draw your

7 attention to, he can do it in his reply -- and turn to the next page, 772,

8 in the paragraph beginning: "It seems to me therefore that the

9 authorities are all one way. There is no privilege known to the law by

10 which a journalist can refuse to answer a question which is relevant to

11 the inquiry and one that which in the opinion of the judge is proper for

12 him to be asked." And Lord Denning went on to say that this was a proper

13 case.

14 Lord Donovan, who -- Lord Justice Donovan, I'm sorry, who was

15 sitting with him, said this: "I agree, and added a few words about the

16 residual discretion in a court of trial." And we would argue that that's

17 really what it comes down to. It's a matter of discretion. "Whilst the

18 journalist has no privilege entitling him of the right to refuse to

19 disclose the source, so I think the interrogator has no absolute right to

20 require such disclosure. In the first place, the question has to be

21 relevant to be admissible at all. In the second place, it ought to be the

22 answer to which -- and these are the words I quoted -- "will serve a

23 useful purpose in relation to the proceedings at hand." I prefer that

24 expression to the term "necessary."

25 "Both these matters are for the consideration and if need be the

Page 5415

1 decision of the judge. And over and above these two requirements, there

2 may be other considerations impossible to define in advance but arising

3 out of the infinite variety of fact and circumstance which a Court

4 encounters which may lead a judge to conclude that more harm than good

5 would result from compelling a disclosure or punishing a refusal to

6 answer. For these reasons, I think that it would be wrong to hold that a

7 judge is tied hand and foot in such a case as the present and must always

8 order an answer or punish a refusal to give the answer once it is shown

9 that the question is technically admissible. Indeed, I understood the

10 learned attorney general to concur in this view, namely that the judge

11 should always keep an ultimate discretion. This would apply not only in

12 the case of journalists but in other cases where information is given and

13 --"

14 THE INTERPRETER: Could counsel slow down when reading, please.

15 MS. KORNER: Sorry. I saw the message.

16 JUDGE AGIUS: [Microphone not activated] Yes. The problem is we

17 are not using this, therefore ...

18 MS. KORNER: No.

19 Your Honours, that is still, we would submit, the classic

20 statement of principle. Your Honours, in the later other leading case in

21 the United Kingdom on these matters, which is the -- it was a civil as

22 opposed to a criminal case, which is the British Steel Corporation against

23 Granada Television Limited which dealt with an expose so-called by Granada

24 of British Steel. Their Lordships' service went right up to the House of

25 Lords. And Their Lordships there quoted Mulholland the dictor in

Page 5416

1 Mulholland and Foster approvingly. And with Lord Salmon dissenting -- and

2 I'm not going to go through it Your Honours have a copy. It's very

3 lengthy because it's reported right from the divisional court through the

4 Court of Appeal up to the House of Lords. The appeal was dismissed, and

5 the -- the ruling was that the media of information and journalists who

6 wrote or contributed for them had no immunity based on public interest

7 which protected them from an obligation to disclose in a court of law

8 their sources of information when such a disclosure was necessary in the

9 interest of justice.

10 Now, Your Honour, I'll come back to the case of Senior v.

11 Holdsworth, which was quoted. But Your Honours, can I express or distil,

12 I hope, what we would suppose is the principles that arise. It would be

13 wrong to give journalists a blanket exemption from ever testifying. And

14 the reason doesn't have to go -- or doesn't have to look very far. It

15 would give a licence to journalists to print what they liked, how they

16 liked without any fear of ever having to justify their sources or the

17 information that they were printing. And that is why no court in any land

18 in our submission would ever agree to such a blanket principle.

19 I'll come to the suggestion -- the situation as regards reporters

20 reporting from a theatre of war in a moment, but can I just conclude what

21 I say looking at the case of Senior v. Holdsworth, which was referred to

22 by Mr. Robertson, decided in 1975. It's worth noting that Lord Denning

23 was one of the last judges who was able to sit until well after the age of

24 80. And this in fact again was a civil action where ITN, who are one of

25 the news organisations, it's fair to say, as Your Honours have seen who

Page 5417

1 not only have been actively operating in theatres of war, as is referred

2 to in -- I think it's Mr. -- the journalist's article statement -- I've

3 forgotten his name now -- the man who wrote the book -- Gutman, yes, Roy

4 Gutman -- that ITN were the first to bring to public attention the

5 atrocities in Omarska and Trnopolje and had no hesitation at all in

6 assisting in the Prosecution. Mr. Gutman says they suffered for it. As

7 far as we understand it, they don't feel that they've suffered for it at

8 all.

9 But Your Honour, in this particular case, ITN had film of a

10 festival, a pop festival. There was a civil action for damages, and the

11 plaintiff there wanted the outtakes -- in other words, those that weren't

12 seen. And there was then a hearing. And what Lord Denning said about

13 it -- you were quoted part of it. But can I take Your Honours back to the

14 principles, which are on page 33 of the judgement.

15 Your Honour, at page 33 Lord Denning dealt with the principles.

16 Leaving out the first words. "ITN desire guidance as to the circumstances

17 in which they should be required to produce the untransmitted film and

18 show it to the Court. They do not claim an absolute privilege but they

19 draw attention to several matters which may make it undesirable for

20 production to be ordered." And then they -- they pointed to their duty to

21 present news with accuracy and impartiality. And they went on: "Next

22 they say --" and this is -- really goes to the heart of Mr. Robertson's

23 argument on war correspondents -- "if they were to produce untransmitted

24 film, their reporting teams might be exposed to violence more than they

25 are at present. I do not myself see the force of this point. If a crowd

Page 5418

1 of people attack a cameraman, it is because they do not want their actions

2 to appear on the transmitted part of the news and not because of the

3 untransmitted portion."

4 Then they dealt with the point that these items might be

5 misleading. And then goes on to deal with the question of which bits --

6 how they would identify which were the relevant parts of film, which again

7 doesn't affect us.

8 Then we come to the paragraph that begins: "Next there is the

9 special position of the journalist or reporter who gathers news of public

10 concern. The courts respect his work and will not hamper it more than is

11 necessary. They will seek to achieve a balance between these two matters.

12 On the one hand, there is the public interest which demands that the

13 course of justice should not be impeded by the withholding of evidence.

14 On the other hand, there is the public interest in seeing that confidences

15 are respected and that newsmen are not hampered by fear of being compelled

16 to disclose all the information which comes their way." And they refer to

17 one of the authorities, which is, I think, a footnote in the American

18 authorities to which Your Honours have been referred; that is, the

19 democratic national committee versus McCord. Which I think arose out of

20 the Watergate saga.

21 And then as we said in this court -- and he refers to his own

22 case: "The judge will not direct him, the journalist, to answer unless not

23 only is it relevant but also it is a proper and indeed a necessary

24 question in the course of justice to be put and answered."

25 Then there's the question of the expense, and then this: "In the

Page 5419

1 light of all these considerations, I think that on due notice being given

2 the courts have the power to order the ITN to produce and show the

3 untransmitted film when the course of justice so requires. But the court

4 should exercise this power only when it is likely that the film will have

5 a direct and important place in the determination of the issues before the

6 Court. The mere assertion that the film may have some bearing will not be

7 enough. If the judge considers that the request is irrelevant or fishing

8 or speculative or oppressive, he should refuse it."

9 Your Honour, in other words, it's fairly and squarely within the

10 discretion of the judge to exercise the proper balancing exercise that was

11 referred to by Judge Hunt in his decision between the competing needs,

12 that is, of the ability of journalists to report and to obtain information

13 without the threat of inevitable disclosure coming. Your Honour, that

14 would be the other side of the coin, as it were; in other words, that if a

15 journalist knew that a member of the public or a defendant or the

16 Prosecution had only to ask for a summons, they would have to testify,

17 well, of course that may have an effect. But equally undesirable, as I've

18 already said, is the other extreme side of the coin, a complete blanket

19 immunity.

20 Your Honour, in respect of the American line of authorities, it is

21 our submission -- and I don't go -- propose to go through them, because

22 Your Honours have them and have seen our arguments on this matter -- that

23 the position is very much the same. There is a certain degree of -- and I

24 use the privilege in its loosest proper term as opposed to legal term --

25 given to journalists in that if they can show that there's a proper reason

Page 5420

1 why the information should not be disclosed, either through an informant

2 or they should not testify for whatever reason, then the courts will grant

3 them that latitude. But in each case, it's a matter for the courts.

4 What about the prospect -- or the aspect, rather, that's raised,

5 and that really that those who report from war areas should have, such as

6 it were, a blanket immunity. Your Honours, we say once you start giving

7 this type of immunity, the courts will find themselves, we would submit,

8 in somewhat of a difficulty. What particular part of the journalist's

9 activities in a war zone is covered by this immunity? Is it Mr. Randal,

10 who sits in Mr. Brdjanin's office in Banja Luka in the municipal building

11 and interviews at that stage a politician? Is it the person, as we've all

12 read about, who was covering action in a country and was wounded, or the

13 journalists who were killed? But the reality is, if one looks at the list

14 of journalists killed -- and no one has any doubt -- and it's not the

15 Prosecution's job for -- at all to suggest that the journalists who brave

16 those sort of conditions, who go into war zones to report what is

17 happening, are brave men fulfilling a public function. But the -- they

18 get killed not on any showing because it is thought that they are going to

19 testify but because they are reporting what the particular side that takes

20 an action does not want them to report. To take a very recent example

21 that's been in the press, no journalists were allowed into the town of

22 Jenin in Israel for a length of time, presumably because nobody wanted

23 them to report what was happening there. But to say that because they go

24 into a war zone they can never be compelled to testify, Your Honour,

25 would, in our submission -- to ignore the reality. And the reality

Page 5421

1 sometimes is that journalists are the only people who are in a position to

2 ensure or to assist the Prosecution of war criminals. If they are the

3 only people who saw a particular action, who went into the camps and

4 filmed what was happening, we submit it would be wrong that the

5 prosecution are people responsible for such crimes could not take place.

6 Your Honour, the overriding international public interest, which

7 is why this Tribunal was established, is that people should be brought for

8 trial for alleged offences.

9 JUDGE AGIUS: But I think, Ms. Korner, in all fairness to

10 Mr. Robertson's submissions, he does concede to you in paragraph 13 that

11 in the event of the journalist or his testimony is of crucial importance

12 to the determination of a defendant's guilt -- forget innocence for the

13 time being, because that would be more the responsibility of -- of the

14 Court than of the party -- in that case, he definitely is not claiming any

15 qualified privilege. He is conceding that the Court or Tribunal, whatever

16 that would be, would have a right to insist on the journalist giving

17 evidence. So that is conceded.

18 MS. KORNER: Well, Your Honour, that was very much my impression

19 from listening to Mr. Robertson's argument. But there is still the

20 underlying --

21 JUDGE AGIUS: [Previous translation continues] ... too --

22 MS. KORNER: -- The underlying theme that journalists should have

23 this privilege, immunity which is theirs and theirs alone to waive. In

24 fact, as one can really see from this case, it's more the -- the employer

25 of the journalist who decides whether or not the journalist will or will

Page 5422

1 not testify, because it's plain from what's been said that it's the

2 Washington Post who stepped in and dealt with this.

3 But Your Honour, I am content -- may I put it this way -- I am

4 content with the principle that the courts of course should be careful and

5 wary about compelling a journalist to disclose his source or to testify,

6 but it is in the end a matter for the courts to rule upon if the

7 Prosecution decide that this is a proper case to issue a witness summons.

8 Your Honours, we do not either quarrel with the code of federal

9 regulations that has been referred to by Mr. Robertson. Obviously in all

10 cases all responsible prosecuting authorities would hesitate before

11 seeking the testimony of people who have been news gathering or going

12 further and compelling them to testify.

13 But Your Honour, we would submit that is -- this is the principle

14 which Your Honours ought to deal with.

15 Your Honours, unless I can assist any further or there's anything

16 else you'd wish me to say on the principle, can I turn, then, to the

17 actual immediate facts of -- I think I must say something about

18 Mr. Randal.


20 MS. KORNER: Your Honour, Mr. Randal, as I've already said,

21 interviewed Mr. Brdjanin in his office and published that interview.

22 There's now some suggestion, although Mr. Randal had never said it -- he

23 said he didn't see him again when he wanted to -- that because of the

24 interview, Mr. Brdjanin refused to see him again. Well, Your Honour,

25 that, of course, is already the point. It's the publication of that

Page 5423

1 interview which has, if anything, caused Mr. Randal -- caused Mr. Brdjanin

2 or others not the talk to journalists. And in each case, Your Honour, if

3 there is a refusal or if journalists are placed in danger, it's because of

4 what they report on and what they publish. And we submit that there is no

5 additional, as it were, danger or shunning if at a later stage the

6 journalist is asked to come to court and confirm that what he published

7 was in fact truthful and accurate.

8 Your Honour, this is not a case -- I'll say it again -- where

9 Mr. Randal is being asked to testify about a confidential source. Your

10 Honour, this is a case where the Prosecution alleges that the media were

11 used by probably all sides -- but as we're dealing with the Bosnian

12 Serbs -- by the Bosnian Serbs for the dissemination of propaganda,

13 Mr. Brdjanin, from the evidence that Your Honour has already heard, was

14 one of the arch proponents of the spreading of that propaganda. Your

15 Honour, it is the Prosecution's case that on this one occasion to a

16 journalist who was independent in the sense that he did not work for any

17 of the newspapers concerned in the conflict like Glas or Kozarski Vjesnik

18 or any of the others, gave an interview which we submit goes directly to

19 the heart -- or his answers go directly to the heart of this case. And we

20 therefore submit it is important.

21 Your Honour, this is a case where Mr. Randal made a statement,

22 agreed however reluctantly -- and let me just remind Your Honour of what

23 appears at the bottom of his statement. If I can just find it. "I am

24 willing --" Your Honour, this is the bottom of page 3. "I am willing to

25 speak with the investigators for the Tribunal, but I hesitate as a

Page 5424

1 journalist to testify before the Court. I would prefer that my statement

2 and article stand for themselves. However, if that were not possible, I

3 would be willing to testify that the quotes accredited to Brdjanin are

4 true and accurate."

5 Your Honour, as Mr. Robertson already concedes, Mr. Randal is

6 retired, stands in no danger at all. All he's being asked to do is to

7 testify what was said in that article, leaving aside the question that he

8 was using another journalist as a translator. And that is a totally

9 different issue -- that what was said was truthful and accurate.

10 Your Honours, as I said when I began my address to you, it's not

11 perhaps the ideal basis of fact to mount this particular argument of

12 principle, because our submission is there's no merit in the purpose of

13 this application, which is to set this witness summons aside. Mr. Randal

14 can and was prepared, even though for whatever reason he's now changed his

15 mind, to give evidence and to give evidence, we say, on a highly relevant

16 matter. And so we submit that Your Honours should dismiss this

17 application and that Mr. Randal should be ordered to attend to testify.

18 Would Your Honours give me just one moment.

19 JUDGE AGIUS: Yes, certainly.

20 [Prosecution counsel confer]

21 MS. KORNER: Your Honour, unless there is any other matters from

22 which we can assist, those are our submissions.

23 JUDGE AGIUS: Yes. There's only one minor point, Ms. Korner,

24 rising from the final part of your submissions. You submit that there is

25 no danger -- no difference at all in your mind once there has been a

Page 5425

1 publication in having or not having the witness come forward to confirm

2 its correctness or its exactness. I put it to you that there may be a

3 difference if the probative value of the publication itself is being

4 contested; if, in other words, as in the present case Mr. Ackerman stands

5 up and says, "We contest the correctness of the statement attributed to

6 Mr. Brdjanin."

7 MS. KORNER: Yes.

8 JUDGE AGIUS: Then obviously it makes a difference if the -- if

9 the journalist comes over to confirm it or not. If he does, he may be

10 damning the defendant. If he doesn't, he may be covering him. You know,

11 I mean, it's --

12 MS. KORNER: Your Honour, when I said there was no -- what is

13 being put forward on behalf of the applicant is that it is the -- the fact

14 that if it is known that journalists routinely testify or even may

15 testify, then they stand in greater danger and then politicians won't

16 agree to be interviewed. Your Honour, apart from, we say, it's the

17 publication of the article itself which may cause the problems, the danger

18 or the refusal to speak.


20 MS. KORNER: But secondly, that history has shown that testifying

21 by journalists doesn't seem to have any effect on their ability to

22 news-gather in further situations. In the UK, it's right -- the

23 Americans, as I understand it -- indeed until I read these authorities, I

24 understood there was a -- virtually a guarantee that journalists didn't

25 have to testify in the states. I now see that I'm wrong.

Page 5426

1 In the United Kingdom, journalists routinely -- not routinely but

2 very often do testify about matters and still go on news-gathering.

3 Mr. Vulian [phoen] is a case in point. As far as I know, his ability to

4 news-gather has not been affected by his testimony not once but twice

5 before this Court.

6 Your Honour, I think -- I think that's it. There was one other

7 matter they had in the back -- oh, yes. I'm sorry. And it was Your

8 Honour's point, and that is protective measures. Your Honour, to this

9 extent, I agree with Mr. Robertson. Protective measures, as much as we

10 would all like them to work perfectly do not always work perfectly. But

11 it is still, particularly when testifying before this Court, an added

12 safeguard that Your Honours can give to a journalist who testifies.

13 Your Honour, those are, then, our submissions.

14 JUDGE AGIUS: Yes. Mr. Robertson, I am advised that the

15 interpreters in the B/C/S and French booths in particular truly and surely

16 deserve a 30-minute break, which I think we ought to have now. And then

17 you will have every opportunity.

18 In the meantime, Mr. Ackerman and Madam Fauveau, I wonder if you

19 would like to have an input in --

20 Yes, Mr. Ackerman.

21 MR. ACKERMAN: Your Honour, I would like to have leave at the end

22 for just a very brief input, because it was said by Ms. Korner at one

23 point that this may be a basis for an appeal, and I think it would be

24 important for this Chamber and a future Chamber that might look at this to

25 understand exactly what our position is.

Page 5427

1 JUDGE AGIUS: Yes, certainly.

2 MR. ACKERMAN: Well, the --

3 JUDGE AGIUS: Certainly, Mr. Ackerman.

4 Madam Fauveau, I don't know how much it concerns your client, but

5 the principle is there.

6 MS. FAUVEAU-IVANOVIC: [Interpretation] If Mrs. Korner maintain the

7 thesis that this particular witness and this particular article doesn't

8 concern my client, then I have no arguments about that.

9 JUDGE AGIUS: [Previous translation continues] ...

10 MS. KORNER: Your Honour, may I just say certainly this has

11 nothing to do with General Talic whatsoever.

12 JUDGE AGIUS: Yes, I know.

13 MS. KORNER: Of course it's matter for Your Honours. But I'm not

14 sure that Mr. Ackerman has any locus in this matter. The application is

15 to set aside a witness summons --

16 JUDGE AGIUS: Yes. It's true. But you may have noticed that

17 actually I addressed Mr. Robertson first and wanted to make sure if

18 Mr. Ackerman wanted or Madam Fauveau wanted to put -- to have an input in

19 the matter out of courtesy rather than as a right in this particular

20 subject matter. But I would definitely not even think of excluding a

21 priori any intervention from the Defence benches.

22 I thank you, and we will resume in 30 minutes from now. Thank

23 you.

24 --- Recess taken at 12.16 p.m.

25 --- On resuming at 12.47 p.m.

Page 5428

1 JUDGE AGIUS: Yes, Madam Fauveau.

2 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, I would like

3 to address the Court. But this has nothing to do with the actual case,

4 concerning the article. So it might be better to do it at the end of the

5 hearing. Or if you would prefer, I can do it now.

6 JUDGE AGIUS: Okay. What is it about?

7 MS. KORNER: Your Honour, I think it would be better left. I know

8 what it's about. And I think it's probably better left until Your Honours

9 are finished dealing with this matter.

10 MS. FAUVEAU-IVANOVIC: [Interpretation] In any event, I have to do

11 it today. It's a matter of urgency.

12 JUDGE AGIUS: Yes. Okay. Certainly. There will be ample time, I

13 understand.

14 MS. KORNER: Yes, Your Honour, I think thereby at the end of the

15 session.

16 JUDGE AGIUS: Yes, Mr. Ackerman.

17 MR. ACKERMAN: Your Honour, Mr. Robertson has asked that I make my

18 remarks first so if he has any response he wishes to make to my remarks,

19 he can include them.

20 JUDGE AGIUS: Yes. And do you have anything against that,

21 Mr. Ackerman.

22 MR. ACKERMAN: Against it? No not at all.

23 JUDGE AGIUS: So go ahead.

24 MR. ACKERMAN: Your Honours, I just want to for the record -- I'm

25 sure I've said all these things to Your Honours and that they're in the

Page 5429

1 record somewhere. But so that it's in the record of this day's hearing I

2 simply want to say the following: There are two reports of this meeting

3 on February 10th with Mr. Brdjanin -- one from Mr. Randal and one from

4 Witness X that appeared in a different publication. X is the person who

5 speaks Serbo-Croatian; Mr. Randal does not. So what we have is a report

6 of that meeting written by someone who could understand the language and a

7 report written by someone who could not. More than that, the report

8 written by Witness X or person X or reporter X provides the background of

9 the basis for the interview in the first place. And it's my position that

10 that background makes the testimony irrelevant and inadmissible.

11 The Prosecutor suggests that it's admissible. Statements made a

12 month and a half after this indictment closes is admissible because it

13 shows a state of mind that existed during the course of the indictment.

14 If one looks at the report of reporter X, it's clear that the purpose of

15 the visit with Mr. Brdjanin as Minister of Housing was to seek his views

16 regarding the Vance Owen proposal that would have made a Serb canton out

17 of the Banja Luka area and to ask him how he leaves as housing minister

18 the business of population relocations would and should occur as a result

19 of that. That was either cut from by the newspaper that published the

20 article of Mr. Randal or he never wrote that part of it in the first

21 place. But it puts his article in a position where it does not reflect

22 the true nature of the interview and the context within which it was given

23 and makes what is irrelevant appear to be relevant.

24 I have agreed that the article written by reporter X can be

25 admitted without that reporter being brought here and without objection by

Page 5430

1 me. And if it's a true report of that interview that the Prosecution

2 seeks, that's the one that should be admitted. But the Prosecution in

3 fact seeks what is an untrue report -- certainly in the sense that it

4 leaves out the context. And so that is my position for the record, Your

5 Honour.

6 MS. KORNER: Well, Your Honour, that's --

7 JUDGE AGIUS: You don't need to retort to the last submission;

8 namely, that you are seeking to bring forward an untrue. Because that

9 stands to be decided later on.

10 MS. KORNER: Yes.

11 JUDGE AGIUS: But it's for the record --

12 MS. KORNER: Your Honour, I wasn't proposing to. I don't want to

13 take up what is legal submissions on these matters to deal with what

14 Mr. Ackerman has already argued, what I have already replied to, and what

15 Your Honour has already ruled on, save to say this, that all of these

16 matters that he raises about the other article and the other journalist

17 are available to be put to Mr. Randal, to see what response Mr. Randal

18 gives. And certainly if Mr. Ackerman wants the article written by the

19 other journalist admitted, of course we will accept its admittance and not

20 raise any objection.

21 JUDGE AGIUS: Yes. So the bull is in your hands again,

22 Mr. Robertson.

23 MR. ROBERTSON: Thank you very much, Your Honour, and I hope to be

24 short.

25 As far as Mr. Ackerman's point is concerned, can I say it is no

Page 5431

1 part of our case to say whether this testimony is irrelevant, slightly

2 relevant, or considerably relevant. That is a matter for the Court. It

3 is of course a matter that you would apply in any balancing act or

4 exercise of judgement as to whether it was necessary for the Prosecution

5 to compel the journalist's testimony. But all I would say is that it --

6 the fact that the two articles -- one article is longer than the other --

7 may simply mean that editing was done at Mr. X's newspaper because we all

8 know that journalists file long reports that frequently get cut because

9 of the space requirements of their papers. So the suggestion that it's --

10 Mr. Randal's report was simply because it was longer or contained material

11 that didn't feature in the other report was therefore untrue is -- has to

12 be illogical.

13 But on the merits of this case, it is -- the fact that remains is

14 that it's accepted by the Prosecution that Mr. Randal gave evidence of

15 what he was told by an interpreter. And it -- I simply refer you -- I

16 think it's in our case, in our motion to the Delalic case, the interpreter

17 case where the Trial Chamber said this, and I quote: "An interpreter

18 cannot be relied upon to testify on the evanescent words of his

19 interpretation in the proceedings between the parties." The most,

20 therefore that, Mr. Randal could give apart from perhaps a comment on the

21 defendant's demeanour and would-be evidence of the evanescent words which

22 had been conveyed to him by Mr. X. One would have the -- the Court would

23 have the unhelpful situation, I suspect, at the end of the day if it

24 compelled Mr. Randal in a position where Mr. X had not been compelled that

25 Mr. Randal would spend much of his time defending Mr. X from

Page 5432

1 Mr. Ackerman's cross-examination, and that would not be perhaps a helpful

2 situation.

3 So that is all I say on the facts apart from this: Ms. Korner

4 said -- and she was speculating -- that Mr. Randal was willing to give

5 evidence until she said the Washington Post stepped in. That is not in

6 fact true. It was and is not a correct speculation. Mr. Randal made

7 clear when he was in a sense -- when the Tribunal investigator arrived at

8 his doorstep, he being in retirement, he made clear that he did not want

9 to testify. He did give a statement, because the investigator was there

10 and he was a great supporter of the Tribunal. But he was unhappy about

11 it. He spoke with his colleagues and he spoke with the newspaper and

12 decided that he definitely did not want to give evidence. And that is --

13 that is his position. And it -- of course, there not being any case or

14 any clear guidance for journalists, then that is his entitlement. And

15 it's not as though the newspaper has stepped in to stop him, as the Red

16 Cross did. It's an entirely different situation, because the newspaper's

17 own policy respects the rights of conscience of their own journalists to

18 testify or not. And I hope I made clear at the outset that the Washington

19 Post's position was that, as shown by Mr. Jones, was that if its

20 journalists wanted to testify as a matter of their own conscience for

21 either Prosecution or Defence, that was they right, that this test only

22 comes in to stop -- or to limit compulsory process when sought to be

23 exercised against an unwilling journalist.

24 And of course, if the -- one would not want the decision -- Your

25 Honours' decision to turn on the question of whether Mr. Randal was

Page 5433

1 willing at the beginning, because in that event journalists would simply

2 refuse to give statements to investigators. And there may be some

3 situations where journalists can usefully and helpfully give information

4 or statements to investigators without losing their privilege of not

5 testifying.

6 So that is all I would say on the position of Mr. Randal.

7 To come back to the issue of principle, Ms. Korner said repeatedly

8 that we were seeking a blanket immunity. We're seeking no such thing. We

9 are seeking a qualified public interest privilege; alternatively a

10 presumption against forcing a coercive testimony. We do not seek a

11 blanket immunity. We do accept that in exceptional cases, the privilege

12 can be overridden.

13 Now, Ms. Korner's main plank of law were two English cases from

14 which she read. One was Mulholland, and the other was British Steel. I

15 wasn't aware that those cases were going to feature, and therefore perhaps

16 my response to her may be less polite than it otherwise would have been.

17 These cases are dead cases. They are gone from British case law. They

18 represent English common law at a primitive stage of its development. No

19 counsel would cite them today and no counsel does cite them today because

20 they have been overruled firstly by the British parliament, which in 1981

21 precisely because British Steel and Granada had decided that journalists

22 had no privilege -- decided that journalists must have a privilege and

23 they passed the 1981 Contempt Act to reverse Mulholland and British Steel.

24 And the 1981 Contempt of Court Act will be found in Goodwin at paragraph

25 20. It gives journalists a qualified privilege to decline to name their

Page 5434

1 sources unless certain very important conditions are met. That is the

2 first way in which Mulholland and British Steel have been consigned to the

3 dustbin of British legal history.

4 The second way is through the European convention. Mulholland was

5 decided in 1963 before Britain had given the right of individual partition

6 in 1966 and the European convention provided, as Goodwin shows,

7 journalists with precisely the right that they were denied in Mulholland

8 and in British Steel. What is most -- what I do protest most vigorously

9 about is the suggestion -- I think it came in Lord Justice Donovan's

10 decision in Mulholland that the journalist should be ordered to testify if

11 he could serve quite "a useful purpose." Article 19 of the international

12 convention on civil political rights and Article 10 and all the

13 jurisprudence under those articles says that the test is whether it is

14 necessary and that questions of usefulness, expediency and the like are

15 nothing to the point. So Mulholland is part of that primitive era of

16 English law where rights were not -- particularly free speech rights and

17 human rights were not acknowledged, as they should have been by English

18 law, which is why England now has a human rights act and incorporates the

19 European convention and so on, and it would be most retrograde and indeed

20 open this Court to critical and visible comment were it to develop a

21 progressive modern rule that was based on these pre-convention --

22 pre-European convention and pre-contempt of court act authorities which

23 have been decisively rejected in Britain.

24 One can see that by looking at case -- the last case in our

25 bundle, the case of Bright, which was the final -- the most recent case

Page 5435

1 decided on the subject of protecting journalists from compulsory process.

2 And one sees that the -- as is the English reporting convention, that on

3 the second page the cases referred to in the judgements are set out. And

4 just so you can see what was before the Court, the cases referred to in

5 the legal arguments are then set out. And I think it's right to say that

6 in neither section on pages 663 or 664 does one find either Mulholland or

7 British Steel. The reason for that, of course, is that they are not

8 longer of any authority at all on this issue in Britain. But one sees

9 Senior v. Holdsworth and Goodwin, which is X and Morgan-Grampian

10 publishers, referred to as 664, which were cases of course cited before

11 the Court.

12 So we do say that the -- they are far from being classic

13 statements of principle, they are superseded statements of principle which

14 have been rejected within the jurisdiction from which they emanate and

15 that they were -- arose as a result of a law that was found and is

16 regarded now as defective in its protection for journalists, so that the

17 authority on which the Prosecution rely should not be followed. Of course

18 Senior v. Holdsworth has survived from that era because it was a

19 progressive decision which showed that there was -- the judges recognised

20 or were coming to recognise the importance of a public interest privilege

21 for journalists, and that has been now recognised far more as a result of

22 the European convention and the other international law cases that I

23 presented.

24 So that leaves us, I think, with not a great deal between the

25 Prosecutor and the applicant. The Prosecutor says, "Do it as a matter of

Page 5436

1 discretion or consider in your discretion these issues." We say, "No,

2 judicial discretion is a slippery slope. It's a subjective matter which

3 obviously in many situations has to be relied on. But if there's a better

4 solution than discretion, particularly in a criminal case when it should

5 be adopted and that because of the importance of this matter to

6 journalists and because of the importance of journalists to justice in the

7 way that Richard Goldstone explained, we would invite the Court to

8 concretise the -- the situation by making it either a presumption, which

9 means that in -- before exercising the discretion or the discretion is

10 exercised with the starting point, the principles for which we've

11 contended the formula that a journalist ought not to be compelled unless

12 he or she falls within that narrow area of exceptional cases which satisfy

13 the three conditions, or else it be approached as a public interest

14 privilege, the public interest of protecting the journalist in war zones

15 being trunked only when the evidence is -- is necessary, essential,

16 crucial, whatever test the Court chooses to apply, but certainly not

17 merely useful, which would be a dangerous, outmoded, and in fact

18 disregarded test.

19 And so with that, that is really, I think, the -- the choice that

20 faces the Court between the position of the Prosecutor and the position of

21 the applicant.

22 MS. KORNER: Your Honour, I --

23 JUDGE AGIUS: Yes, Ms. Korner.

24 MS. KORNER: I have no right to respond to Mr. Robertson. But to

25 try and counter the accusation that I've been addressing Your Honours as

Page 5437

1 an outdated law --

2 JUDGE AGIUS: Don't worry. We will take everything into

3 consideration.

4 MS. KORNER: Yes. May I just say this, Your Honour --

5 JUDGE AGIUS: I mean, this Tribunal is not bound by judgements of

6 the UK courts or by the US courts or --

7 MS. KORNER: Your Honour, absolutely -- and the only reason I'm

8 raising it is because we are in a public forum and I think it trying say

9 in our initial submission we dealt with as Mr. Robertson rightly points

10 out the contempt of court act and the law as it now stands including the

11 case of Goodwin and the United Kingdom. The reason I referred Your

12 Honours to those cases is because all these cases are concerned with

13 material and confidential sources. Your Honours are actually being asked

14 to extend that principle to give, as Mr. Robertson has rightly said, to

15 put the onus on the Prosecution or whoever is summonsing a journalist to

16 overturn what he calls a privilege not to testify save in exceptional

17 circumstances. That's why I referred Your Honours to those cases, because

18 they deal with that particular aspect and why that has never been granted.

19 MR. ROBERTSON: Could I just say they hope I didn't indicate that

20 there was anything in any way improper in Ms. Korner referring to these

21 cases. They are indeed of great historical interest but of no relevance.

22 MS. KORNER: You get the last word.

23 JUDGE AGIUS: Yes. So I suppose we can bring this debate to an

24 end. And may I also take this opportunity to signal the Chamber's

25 appreciation of the high level submissions that have been forthcoming from

Page 5438

1 both sides, not to exclude -- not excluding, of course, Mr. Ackerman.

2 MS. KORNER: Your Honour, Madam Fauveau wants to address you on an

3 issue which doesn't affect Mr. Robertson. I know he may be anxious to --

4 JUDGE AGIUS: To proceed to better weather.

5 MS. KORNER: Exactly.

6 MR. ROBERTSON: Well, thank you, very much, Your Honours. It's

7 been a great privilege to appear before you.

8 JUDGE AGIUS: Thank you for coming over, Mr. Robertson, and for

9 your -- for your submissions, anyway. Thank you.

10 Perhaps we'll take a very short break. We will remain here in the

11 hall until Mr. Robertson if he -- and his team -- unless they prefer to

12 stay. I mean, it's -- there's absolutely no -- yes. I think it's

13 better.

14 Yes, Madam Fauveau.

15 MS. FAUVEAU-IVANOVIC: [Interpretation] Mr. President, Your

16 Honours, we filed this morning a request to file an appeal against a

17 ruling of Judge Schomburg. The decisions that were filed with the

18 Registrar last Friday, on the 3rd of May, we received it on the 6th of May

19 at our explicit request. This morning, I filed a request to appeal,

20 relying on 73(D) of the Rules of Procedure. After having filed this

21 request, I have just received amendments to the rules, published

22 apparently on the 1st of May and which came into effect on the 8th of May

23 and which were apparently voted on the 23rd of April, 2002. I am

24 addressing you because the Defence, and I think all Defence teams are in

25 an identical situation. No one ever warned us that there was any

Page 5439

1 amendment to the Rules of Procedure made. So I am now in a very delicate

2 situation, because I learnt of this amendment around 2.35 today. And

3 obviously the deadline to file is 4.00 this afternoon. I received it at

4 12.35. I'm sorry. 12.35.

5 JUDGE AGIUS: I was going to correct that, thinking that I was

6 keeping my staff overtime.

7 May I ask you which decision you are appealing or you would like

8 to appeal against.

9 MS. FAUVEAU-IVANOVIC: [Interpretation] The decision of

10 Judge Schomburg on disqualification.

11 JUDGE AGIUS: Yes. But you will immediately understand that the

12 only way I can respond to you on this point is to keep my mouth shut. If

13 the decision dealt precisely with my disqualification, then obviously I'm

14 not going to comment on your rights. I mean, you can deal with it and

15 make inquiries elsewhere. But certainly don't expect me to come forward

16 with any comments.

17 MS. FAUVEAU-IVANOVIC: [Interpretation] No, Your Honour. I do not

18 expect any comment from you regarding this appeal or anything at all from

19 this Trial Chamber. But on the other hand, I would like to draw the

20 attention of the Tribunal that I am not alone. It is all the Defence

21 teams. No one ever warned us of an amendment to the Rules almost 20 days

22 ago. I know that that is not within your prerogatives. But for me, that

23 is the only means I have to draw this to the attention of the entire

24 Tribunal.

25 JUDGE AGIUS: Okay. And from that -- from that respect, I thank

Page 5440

1 you for indicating it to the Chamber. It's something which, as you know,

2 we absolutely have no control as a Chamber because this is something that

3 has to do with the Rules committee and the Registry. I'm not quite sure

4 in hastening to agree with you that no one knew about it, because I do

5 have information going back earlier on this week that in at least one

6 other case -- which has got nothing to do with this case -- the question

7 arose as to whether the amendments were going to be applied to a decision

8 that was being handed then which was just one day or two days prior to the

9 8th of May. So I'm sure that there were some -- at least some others that

10 were certainly aware of the amendment. But I'll take what you say as part

11 of the record, and it will enter so, and I will enquire, because it's also

12 in the interest of this Trial Chamber to know that if there is an

13 amendment to the Rules that is brought to the attention of anyone

14 interested that -- made public, in other words.

15 THE REGISTRAR: The amendment of the 1st May 2002 is on the

16 Internet.

17 JUDGE AGIUS: Yes. But --

18 THE REGISTRAR: The [Previous translation continues] ...

19 JUDGE AGIUS: Yes. But -- come on.

20 MS. FAUVEAU-IVANOVIC: [Interpretation] Since we are talking about

21 the Internet, the Internet in the Defence room is not working -- has not

22 been working for a long time, since we're talking about it.

23 JUDGE AGIUS: I will not force anyone to go on the Internet to

24 check. We can leave it at that.

25 I thank you for passing on this information to the Trial Chamber.

Page 5441

1 Yes, Ms. Korner.

2 MS. KORNER: Your Honour, simply for next week, we're not sitting

3 on the Friday, as I understand it.

4 JUDGE AGIUS: Yes. We agreed that we won't be sitting. It's a

5 decision of the bureau. Not mine.

6 MS. KORNER: Yes. I understand, Your Honour. And therefore --

7 just as Your Honours and everybody knows, the only witness who will be

8 here next week is Judge Dragonovic on the basis -- I know that the

9 Defence counsel said they wouldn't be very long but I think he'll still

10 going to be the best part of -- certainly the whole of Monday's session

11 and maybe into Tuesday's in chief, so on that basis.

12 JUDGE AGIUS: Okay. Ms. Korner, before we adjourn, yesterday and

13 the day before, together with my staff, I'm trying to reorganise or put in

14 absolute impeccable order the Banja Luka chapter. And I have -- I think I

15 need to ask for your help together with the Defence with regard to the 92

16 bis statements.

17 MS. KORNER: Do you know, Your Honour, I suddenly remembered we

18 hadn't done anything about that.

19 JUDGE AGIUS: Because -- because in the piles and piles and piles

20 of documents that I have, I realised that these have not -- at least they

21 have not been given any exhibit number to start with. So before -- I

22 mean, I will be losing one of my main staff in the -- in the legal sector,

23 and she is in charge of concluding the Banja Luka chapter for me. And I

24 think --

25 MS. KORNER: I did point out to her that in fact it hadn't been

Page 5442

1 concluded because A, there's potentially still the witness to come at the

2 end of this month who's going to deal with that; and there is also the

3 diarist who won't be giving evidence until after September.

4 JUDGE AGIUS: But how does that effect these particular documents.

5 MS. KORNER: Oh, it doesn't affect the 92 -- what I mean is --

6 JUDGE AGIUS: Oh, no. No. I was trying endeavouring to conclude

7 what can be concluded. And definitely the 92 bis statement can be

8 concluded.

9 MS. KORNER: Your Honour, I had in fact -- I suddenly remembered

10 after we started Sanski Most that we had done nothing about the 92 bis

11 statements.


13 MS. KORNER: And what I think we'll do is we'll try and allocate

14 them exhibit numbers within the Banja Luka range.


16 MS. KORNER: Because we jump from 500 to --

17 JUDGE AGIUS: Yes. Actually to help you, I have asked my

18 secretary -- and she's done it already -- to arrange them in the order

19 that they were handed to me so that then there will be mutual control

20 when -- make sure that we're talking of the entire set of --

21 MS. KORNER: Yes. If Your Honour's legal officer or secretary

22 contacts us, we -- just to confirm the order, then we can do what we can.

23 JUDGE AGIUS: Okay. Thank you. Thank you.

24 On the other hand, the same matter. I'm not quite sure, but the

25 possibility is there. Mr. Ackerman and Madam Fauveau, please do check if

Page 5443

1 there are any of the documents that you made use of during the Banja Luka

2 which may have not been tendered as exhibits. I have a suspicion that

3 there might be. I do have in my file some documents forthcoming from your

4 side in particular -- Mr. Ackerman. Not Madam Fauveau's. I mean,

5 Madam Fauveau's seems to be complete. But your case I seem to have

6 some -- some documents which I don't recall you making use of them during

7 your cross-examinations. But they have certainly not been tendered as

8 exhibits. So please do check that as well so that at least as far as

9 possible I can lock the Banja Luka folders with the documentation for

10 future reference.

11 MR. ACKERMAN: I'm told that we have documents from 1 through 64.

12 We're trying to straighten out now what's been tendered and what hasn't

13 been.

14 JUDGE AGIUS: Yes. Okay.

15 MR. ACKERMAN: And it may be that the easiest way to solve it is

16 to tender them all -- re-tender them all and -- rather than spend hours

17 trying to sort it out.


19 MR. ACKERMAN: Give us until Monday and we will --

20 JUDGE AGIUS: Yes. You can -- I'm not putting any deadlines on

21 this. It's something which I'm asking for you cooperation. So it's not a

22 question of putting deadlines. Thank you.

23 So the -- we are adjourned till Monday morning. We'll be meeting

24 in this courtroom. And as agreed, there will be the judge continuing his

25 evidence from where he left it a week -- two weeks ago.

Page 5444

1 I thank you all. And have a nice weekend. Thank you.

2 --- Whereupon the Motion Hearing adjourned

3 at 1.24 p.m.