Tribunal Criminal Tribunal for the Former Yugoslavia

Page 10157

1 Thursday, 3 October 2002

2 [Appeals Hearing]

3 [Open session]

4 [The accused not present]

5 --- Upon commencing at 9.03 a.m.

6 JUDGE JORDA: [Interpretation] I wish to check first whether the

7 interpreters can hear me.

8 THE INTERPRETER: Yes, Your Honour.

9 JUDGE JORDA: [Interpretation] Let me ask Madam Registrar to be

10 kind enough to call the case which is the subject of the present hearing.

11 THE REGISTRAR: Good morning, Your Honours. This is the case

12 number --

13 JUDGE JORDA: [Interpretation] Good morning.

14 THE REGISTRAR: This is the case number, IT-99-36-AR73.9, the

15 Prosecutor versus Radoslav Brdjanin and Momir Talic.

16 JUDGE JORDA: [Interpretation] Thank you very much.

17 Could we have the appearances, please. First the appellant, the

18 counsel for the appellant, the counsel for Mr. Randal. Good morning.

19 MR. ROBERTSON: Good morning, Your Honours.

20 JUDGE JORDA: [Interpretation] Just a moment, please.

21 Madam Registrar, we seem to have a small technical problem here.

22 My colleague Judge Gunawardana doesn't have any headset. And channel 4, I

23 think it is. Can you hear me, Judge Gunawardana?

24 JUDGE GUNAWARDANA: [Interpretation] Yes.

25 JUDGE JORDA: [Interpretation] I apologise.

Page 10158

1 We had the case identified, and now I wanted to have the parties.

2 I'm listening to you, the counsel for Mr. Randal.

3 MR. ROBERTSON: [Microphone not activated]

4 THE INTERPRETER: Microphone, please. Microphone, please.

5 MR. ROBERTSON: Good morning, Your Honours. I appear for

6 Mr. Jonathan Randal, the appellant, together with my friends Mr. Steven

7 Powles, Ms. Fiona Campbell, and Mr. Mark Stephens.

8 JUDGE JORDA: [Interpretation] Thank you. Please be seated. I

9 address myself now to the amici curiae which have been designated.

10 MR. ABRAMS: [Microphone not activated]

11 JUDGE JORDA: [Interpretation] Please switch on your microphone.

12 MR. ABRAMS: Good morning, Your Honours. My name is Floyd

13 Abrams. I appear with Joel Kurtzberg on behalf of the amici curiae.

14 JUDGE JORDA: [Interpretation] Thank you very much.

15 Now, the Office of the Prosecution, please.

16 MS. KORNER: Your Honours, Joanna Korner, Colin Black, assisted by

17 Denise Gustin, case manager. Good morning, Your Honours.

18 JUDGE JORDA: [Interpretation] Thank you. Good morning.

19 And as for the Defence, I think that we don't have present the

20 accused nor Mr. Ackerman. Can you tell us what is the position of the

21 Defence in this case.

22 THE LEGAL OFFICER: Yes, Mr. President. Both Defence counsel have

23 chosen not to be here and neither have the two accused in this case.

24 JUDGE JORDA: [Interpretation] Very well.

25 I'm now going to summarise the procedure first, and several

Page 10159

1 questions will arise in this important hearing. I wish to remind you that

2 we as the Appeals Chamber have been seized of a request filed on the 26th

3 of June, 2002 by counsel for Mr. Randal, who worked for several years for

4 the Washington Post as a journalist. Following a scheduling order issued

5 on the 4th of September, 2002, the Appeals Chamber is sitting today to

6 hear the arguments of the parties.

7 Let me remind you of the context.

8 It originates from a decision rendered on the 29th of January,

9 2002, by Trial Chamber II, chaired by Judge Agius and consisting of Judge

10 Janu and Judge Taya. In that decision, the Trial Chamber, acting on a

11 request from the Prosecution and pursuant to Rule 54 of the rules, a

12 confidential subpoena to give evidence seeking to compel Mr. Randal to

13 testify in the proceedings. Mr. Randal opposed this subpoena by written

14 motion filed on the 8th of May, 2002.

15 On the 10th of May, 2002, the Trial Chamber heard oral arguments

16 from both Mr. Randal and the prosecution regarding the motion to set aside

17 the said subpoena. On the 7th of June, 2002, in its decision on the

18 motion to set aside the confidential subpoena to give evidence, the Trial

19 Chamber upheld this subpoena against Mr. Randal. On the 19th of June,

20 2002, pursuant to Rule 73 of the rules, the Trial Chamber granted

21 certification to file an interlocutory appeal, which was filed on the 26th

22 of June.

23 Filings in the appeal.

24 Following the decision of the 5th of August, the Appeals Chamber

25 authorised the certain number of media companies and associations of

Page 10160

1 journalists to intervene as amici curiae. On the 16th of August, the

2 counsel for the amici curiae filed a brief in support of the appeal of

3 Mr. Randal. The Prosecution filed a response on the 15th of July to the

4 appellant, and on the 27th of August to the amici curiae. The counsel for

5 the accused of Mr. Brdjanin and Mr. Talic, the two accused in this case,

6 did not file any briefs in this appeal. However, the counsel for

7 Mr. Brdjanin had chosen to exercise his right to make oral submissions at

8 the present hearing at first, but he subsequently withdrew. The counsel

9 for Mr. Talic did not wish to avail itself of this option.

10 Given the importance of this case, and as a matter of fairness to

11 the parties and the amici curiae, the Appeals Chamber felt it would be

12 necessary to have an oral argument. The Judges have had the benefit of

13 reading numerous detailed briefs filed by the parties.

14 From these, it would appear -- it would appear, that the core

15 issues raised in this appeal are the following.

16 First of all, war correspondents, do they enjoy any kind of

17 immunity which would protect them against the obligation to testify in

18 certain cases before this Tribunal? And in particular, the work of war

19 correspondents, is there a public interest in that work that the Tribunal

20 should protect? Is such a public interest protected under customary

21 international law or general principles of law? Would compelling war

22 correspondents to testify before a War Crimes Tribunal adversely affect

23 their ability to carry out their work and thus their ability to pursue

24 this public interest?

25 A second series of questions: If so, that is if the journalists

Page 10161

1 do have immunity, what are the criteria for the application of this

2 privilege? In particular, if there are any criteria to -- meant to

3 protect war correspondents, what kind of information should the proposed

4 immunity protect? Does it also protect confidential sources?

5 A third series of questions: If there is any form of immunity for

6 war correspondents, does it apply to the facts of this case? In this

7 connection, I would like to summarise very briefly what took place before

8 the Trial Chamber. During of course -- from the surface of the file, at a

9 hearing held on the 21st of January, 2002, the Prosecution sought to have

10 admitted in evidence an article written by Mr. Randal, and published on

11 the 11th of February, 1993 in the Washington Post. The Defence objected

12 to the article's admission without first being given an opportunity to

13 cross-examine Mr. Randal. The Prosecution then requested the Trial

14 Chamber to issue a subpoena to Mr. Randal. Mr. Randal, I wish to remind

15 you, had already given a written statement to the Prosecution but he did

16 not wish to testify in the proceedings. Consequently, the Trial Chamber

17 and that is the last question, was it in error in finding that it was

18 necessary to subpoena Mr. Randal under Rule 54 of the Tribunal's rules?

19 That would be briefly the summary of the background for this

20 hearing. I am suggesting the following schedule. After the opening

21 remarks that I have made - and I think I've respected my time limit, that

22 is 9.15 - we intend to hear the arguments of the appellant. Then from

23 10.00 to 10.40 we will hear the submissions of the amici curiae. Then we

24 will have a break. The Judges will have questions. I wish to remind you

25 that Judges can always put questions in the course of the submissions, at

Page 10162

1 least for the sake of clarification, but according to this schedule,

2 supported by my colleagues, I think that the most important questions will

3 be put after the break. From 11.30 to 12.10, we will hear the counsel for

4 the Prosecution; then the response of the counsel for the amici curiae, if

5 they consider it necessary; then the reply for the counsel for the

6 appellant, if necessary; and then, again, some 30 minutes for the

7 questions of the Judges, if the Judges wish to intervene.

8 What I would like to ask you, because you're rather numerous in

9 this very important hearing, and in view of the fact that you have

10 submitted very lengthy written submissions, I would like to ask you not to

11 repeat the points you have made in those submissions but to present in a

12 clear, succinct, and synthetic manner your main arguments as is normal for

13 good professionals that you are. So it is 9.15, and in accordance with

14 this schedule, I will perhaps ask Mr. Robertson as counsel for the

15 appellant to take the floor. Thank you.

16 MR. ROBERTSON: Thank you very much, Your Honour. It is a great

17 privilege for me to represent Jonathan Randal in this appeal against the

18 Trial Chamber's decision to which you have referred. And I hope in the

19 course of my address to deal with the questions that you have so

20 accurately and presciently summarised, Mr. President, namely, the first

21 issue be of three that you have identified, being the public interests

22 that are at stake in the use of the Court's coercive powers over war

23 correspondents; the second set of questions concerning the criteria and

24 the -- by which any such evidential rules should be formulated; and the

25 third set of questions, namely, how that criteria, once identified, should

Page 10163

1 be applied to the facts of this case. And I hope in the course of my

2 address to suggest answers to those questions that have been posited this

3 morning by the Court.

4 Mr. Randal, as you know, was served in Paris with a subpoena to

5 compel his testimony as a witness for the Prosecution in respect of his

6 work in a conflict zone - namely Banja Luka - in early 1993, February

7 1993, when the article was published, a time be it noted that before this

8 Tribunal had been effectively established. The appeal raises the issues

9 that you identified: Firstly, the issue of public interest principle, we

10 say the issue of principle, and the formulation of the criteria for the

11 evidential rule; and secondly and finally, applying the principle once

12 it's identified to Mr. Randal.

13 The issue of principle is whether, as we contend, there is a

14 special evidential rule under which war correspondents will only be

15 compelled against their will to testify to an international criminal court

16 when their evidence is essential to the just determination of the case and

17 can be obtained by no other means than the use of the court's coercive

18 powers, or whether, as the Trial Chamber held, their attendance as witness

19 may be compelled either by Prosecution or by the Defence if there is --

20 evidence is merely relevant - or "pertinent" was the word used by the

21 Trial Chamber - to an issue in the trial. Of course the final question is

22 whether once the rule has been formulated as being either relevancy, which

23 is the rule that applies to any witness, or some form of essentiality,

24 whether in this case the evidence that Jon Randal could give is

25 sufficiently significant to justify under the test that's been identified

Page 10164

1 an order to give it.

2 You will find in paragraph 18 of our written submissions, our

3 basic written submissions - not our response - the suggested formulation

4 of the rule that we respectfully invite the Court to adopt whenever either

5 the Prosecution or the defendant applies to subpoena an unwilling

6 journalist. That party before the subpoena is issued, we say, should have

7 the burden of proving or satisfying the Court of five matters that we set

8 out in paragraph 18 2(A) to 2(E); namely that the journalist -- the

9 unwilling journalist, if forced to testify, will provide admissible

10 evidence that is, A, of crucial importance to its determination of a

11 defendant's guilt or innocence; and B, which evidence cannot be obtained

12 by other means or from any other witness; and C, that the giving of this

13 evidence by the journalist will not require breach of any obligation of

14 confidence; D, that the giving of this evidence will not put him or his

15 family or sources in any reasonably apprehended personal danger; and E,

16 that the decision will not serve as a precedent which would unnecessarily

17 jeopardise the effectiveness or safety of other journalists reporting from

18 that conflict zone in the future. That is at paragraph 18 in our

19 submissions, the nub of the submissions. That is the way we formulate the

20 rule, accepting as we do that is the rule could be formulated in different

21 words, in different ways. The nub of the rule that we suggest in cases

22 where confidentiality is not in issue - and it's not in issue directly in

23 this case - is that the evidence be crucial or essential to either the

24 Prosecution or the Defence and that it can be obtained in no other way and

25 that there be no, of course, question of personal danger.

Page 10165

1 Of course I emphasise two matters about our suggested evidential

2 rule: Firstly, that we are not seeking blanket immunity, total immunity,

3 for all war correspondents. It's only engaged when a war correspondent

4 refuses to testify. We're not seeking, as it were, the Red Cross rule in

5 Simic that protects testimony or class of testimony entirely. We're not

6 seeking a blanket immunity. Some journalists, no doubt taking the view

7 that it's obvious that their evidence is essential to a case, will

8 volunteer to testify without any issue of a subpoena. And it's clear that

9 several have done so in this court already.

10 The second matter that I should stress is that we're not seeking

11 absolute immunity. We accept that there is -- there are cases, there will

12 be cases, where evidence from a journalist and only evidence from a

13 journalist will be crucial to a defendant's guilt or innocence of a war

14 crime or crime against humanity. And in such cases one can envisage a

15 journalist who manages to get in and is only the witness perhaps to a

16 killing of a hundred innocent -- a hundred prisoners of war, a brutal

17 killing. In that sort of situation where the journalist is the only

18 witness clearly the public interest and the just determination of such an

19 appalling charge of mass murder or a crime against humanity must override

20 or trump, to use the card metaphor, the public interest, which we contend

21 justifies having an evidential rule in the first place. But the existence

22 of such a rule which permits compulsion as a last resort will serve to

23 avoid unseemly and damaging clashes between the profession of journalism

24 and the fledgling international criminal law system, clashes that will if

25 they continue only damage the cause of global justice to which Mr. Randal

Page 10166

1 and his former employers, the Washington Post, are committed.

2 Now, it is said against our proposed rule vociferously by the

3 Office of the Prosecutor, and in more measured terms by the Trial Chamber,

4 that it's a new rule. Well, of course it's a new rule, but it's none the

5 worse for that. There were no journalists compelled at Nuremberg to

6 testify, so the issue didn't arise. International criminal justice, at

7 least in this ad hoc sense, only became a reality in this building a few

8 years ago after the Tadic conviction and appeal. These courts have heard

9 several journalists testify voluntarily. Behind the scenes as a result of

10 this case it's clear that many more have refused invitations by the

11 Prosecution to testify and have been allowed to go on their way.

12 Mr. Randal is the first that the Office of the Prosecutor has decided to

13 compel, not his colleague Mr. X, who gives much more relevant evidence of

14 the interview because he was the only one who could speak Serbo-Croat.

15 Mr. Randal is the first of many unwilling journalists but the first who

16 the Office of the Prosecutor has insisted should be the subject of the

17 Court's coercive powers. They know that he refuses to testify as a matter

18 of professional ethics, but they've taken a course that will, if they are

19 correct, result in a spectacle - and I use the term advisedly - a

20 spectacle of a professional journalist in every way committed to

21 international criminal justice, who has served the cause with great

22 courage as a war correspondent, being liable to punishment by way of

23 contempt proceedings carrying up to seven years in prison. That is a

24 spectacle that would confound and confuse those who support the operations

25 of this court, but it's the Prosecutor who has decided to make Mr. Randal

Page 10167

1 the test case to force this issue, so it hardly lies in the Prosecution's

2 mouth to complain that the rule that we seek by -- to invite this Court to

3 adopt to protect him is new. What is new is their insistence on putting

4 him in jeopardy and in putting him in a position that invites his

5 punishment. So the fact that the Court is considering this rule for the

6 first time, the fact it's a new rule in international criminal law, is not

7 in any way when considered in context an argument against it.

8 There is nothing unprecedented or improbable about the claim that

9 war correspondents require a special evidential rule in the international

10 criminal justice system. Every civilised and sensible system of law

11 recognises that the public interest may require special rules for

12 witnesses from particular professions or occupations or witnesses who have

13 been placed in particular situations, and every sensible and civilised

14 domestic system of law seeks to avoid clashes between the interest of

15 justice and the needs or ethics of those particular classes. Rules --

16 special rules are there for doctors, for lawyers, for nurses in some

17 jurisdictions, for priests, certainly for children who have to testify,

18 certainly for victims, victims of rape or sexual assaults. Most domestic

19 systems have special rules, evidential rules for them. And often, by no

20 means invariably, special treatment arises from the public interest in

21 professional confidentiality. In the cases of victims and children, it

22 arises from their special vulnerability. In the case of journalists,

23 domestic systems must recognise - and this is a given - must recognise

24 that their work serves the fundamental human right of freedom of

25 expression, guaranteed in Article 19 of the Universal Declaration, and

Page 10168

1 hence laws and court orders must not operate to diminish the free flow of

2 information or to muzzle the journalists' role as watchdogs for the

3 public.

4 The most prominent, I suppose, or the most common consequence of

5 that right of freedom of expression is, as the European Court of Human

6 Rights pointed out in the case of Goodwin against the United Kingdom is

7 that domestic laws should not formally compel journalists to breach a

8 confidence that they have given, to expose a confidential source, because

9 if the courts require them to do that, the flow of information to the

10 journalists from confidential sources will dry up. But that is not, as

11 the Trial Chamber mistakenly thought, the be all and end all. That is not

12 the basis of the rule. The basis of the rule in Goodwin, as one can see

13 in reading the judgement, is that it is an application of the principle of

14 freedom of expression, which means that the journalist is the watchdog for

15 the public, the public ears and eyes, reporting on what happens, reporting

16 in a way which will alert the public to the danger of crimes being

17 committed.

18 It is not a rule relating directly to confidentiality. It is an

19 application, the rule protecting journalist's sources, of a wider rule, a

20 wider public interest in a free flow of information. Both the Office of

21 the Prosecutor and the Trial Chamber seem to think that confidential

22 sources were the only context in which journalists deserve legal

23 protection. That is not the case. Reading Goodwin shows that it is

24 simply an application after wider rule, and we have shown that in most

25 jurisdictions, there are special evidential rules for journalists in

Page 10169

1 relation -- making it more difficult, for example, for prosecutions to

2 search and seize for journalistic notes and researches or to obtain

3 outtakes and untransmitted film.

4 In the bundle of materials that we've supplied to the Court, Your

5 Honours will find at tab 17, the Code for U.S. Prosecutors, the Justice

6 Department Code, which makes it erect special barriers, special hurdles,

7 to the seizure of journalistic material.

8 At tab 19 there is the case of Senior against Holdsworth, and at

9 tab 20 the case of Bright, which is discussed below, which shows that

10 courts take special care when it is sought to obtain untransmitted film or

11 journalistic notes. No question of confidentiality but applications of

12 the general principle of freedom of expression that the media, as watchdog

13 for the public, should not be muzzled or that coercive powers should not

14 be deployed against journalists unless the demands of justice can be shown

15 by the Prosecutor seeking to -- seeking them, to be overriding. And we

16 invite the Court to consider now how that approach should apply to the war

17 correspondent and be tailored to the new jurisdiction, to the appearance

18 of these international criminal courts - first this Tribunal and then the

19 Tribunal at Arusha, Sierra Leone, and now of course the International

20 Criminal Court, a new development in -- of international criminal

21 justice.

22 May I begin by -- in examining the public interest at stake, by

23 treading on common ground? It's accepted that this court and the other

24 courts dispensing international criminal justice would most probably not

25 have come into being at all without the work of war correspondents, camera

Page 10170

1 persons, in conflict zones and the like, bringing home to viewers and

2 readers the reality of genocide and torture and ethnic cleansing and so

3 winning for their victims what Theodore Roosevelt once described as the

4 indignant pity of the civilised world? It is that indignant pity aroused

5 by the media which has inspired the resolve to provide a measure of

6 retributive justice for victims of despots, tyrants and those -- all those

7 persons in authority who abuse their power in the ways that bring them

8 within the court's jurisdiction. That profound public benefit from media

9 operations in combat zones is ongoing. The vital public watchdog role

10 identified in Goodwin in relation to a business journalist sitting quite

11 safely in his office is of course much magnified when it comes to a

12 journalist risking his life in a combat area.

13 As we say at paragraph 17, the media must be encouraged to

14 continue, firstly, providing important information to alert the world to

15 the commission of war crimes in present and future wars, and secondly, to

16 provide evidential material for prosecutorial investigation, which if

17 followed up can lead to the arrest and trial of war criminals. And we

18 stress investigation. The journalist's publications provide material for

19 the prosecution to investigate and that separation of function, the

20 journalist reporting, the prosecutor following up, maybe many years later,

21 investigating, getting independent evidence, digging up the graves that

22 the reporter has published suspicions about, that kind of distinction must

23 be maintained. These outstanding benefits for international criminal

24 justice arising from media work in combat zones must be recognised, and

25 essential to it, we say, is that the media have the opportunity to enter

Page 10171

1 those zones unfettered and that they have, when they are there, a

2 neutrality. Now, if journalists become readily compellable by

3 international courts as witnesses, particularly as witnesses for the

4 prosecution, if there is no limit to the discretion of the trial chamber

5 judges and prosecutors to subpoena journalists, if they can be dragged

6 into courts by the coercive power of the subpoena on the basis that their

7 evidence may be of interest to the court or may be pertinent to the case

8 for the prosecution or the defence, then we say that those great public

9 interests will be reduced, that it follows in practice that journalists

10 will have less access to information, if the position is left as it is

11 that in the unfettered discretion of the trial judge to issue subpoenas

12 without clear rules that limit the situations to cases where the interests

13 of justice are overriding.

14 Now, there are five public interests that we say -- or there are

15 five ways in which the public interest that I've identified in war

16 reporting will be lessened if the law is left in the discretion of the

17 Trial Chamber, if there is no evidential rule of the kind that we

18 contend.

19 Firstly, war correspondents will lose, or they will be perceived

20 to lose, that professional claim to neutrality which is so important to

21 their existing legal status under the Geneva Convention's first protocol

22 of 1977. They will be regarded not, as the convention protocol requires,

23 as any other citizen, the position that they will -- the legal position

24 that they occupy under the convention unless they attach themselves to a

25 warring party. They will be regarded more readily as spies who operate,

Page 10172

1 and will continue after the conflict is over to operate, on the side that

2 is favoured by the United Nations or by the powers that make up the

3 majority in the Security Council - the side, in other words, that has the

4 support of the Security Council which can refer a situation to the

5 International Criminal Court or set up an ad hoc Tribunal to punish war

6 crimes, which -- a court, when set up, which will subpoena them to give

7 evidence that will help the Prosecution. It is that loss of professional

8 neutrality which is so damaging and damaging in itself.

9 The Geneva Convention on which we rely for the position for the

10 independence of the journalist in conflict situations is set out in our --

11 it was appended to our written submission. It is I think attachment 4 in

12 the -- in the attachments that were annexed to our written submissions,

13 and it is Article 79, where the Geneva Convention measures -- requires,

14 Article 79, measures of protection for journalists: 1, journalists

15 engaged in dangerous professional missions in areas of armed conflict

16 shall be considered as civilians within the meaning of Article 50(1); 2,

17 they shall be protected provided they take no action adversely affecting

18 their status as civilians and without prejudice of their right to

19 accreditation to an armed force.

20 In the perception of warring parties, particularly parties that

21 are not favoured by the United Nations or by the Security Council powers,

22 a war correspondent is a -- becomes, if he is readily subpoenable, becomes

23 automatically in their eyes a potential hostile witness, and the

24 neutrality and protection which is guaranteed him by the Geneva

25 Conventions is less effective.

Page 10173

1 Attachment 5 is -- shows the -- that is a general remark, and the

2 first general remark on protocol Article 79 that you will find at the top

3 in the first paragraph, is that special rules are required for journalists

4 who are imperiled by their professional duties in the context of armed

5 conflict, an indication as early as 1977 that it was thought that

6 international law should provide a basis for special treatment for war

7 correspondents.

8 Attachment 6 is a Council of Europe -- it's -- attachment 6 is the

9 Council of Europe recommendation that there should be no protection of

10 sources of information, but in attachment 8 is the Council of Europe

11 declaration on the protection of journalists in situations of conflict and

12 tension. Those two attachments, attachment 6 and attachment 8, attachment

13 6, the Council of Europe Committee of Ministers recommending special

14 protection for sources, and attachment 8, recommending special protection

15 for journalists in situations of conflict and tension, establish -- and

16 attachment 9, the recommendations of the council to the same effect,

17 establish, really, the point that there is a quite separate position for

18 journalists -- for the protection of journalists in war and the general

19 rule about confidentiality of sources. That is the first public interest

20 that is at stake, the loss of professional neutrality.

21 The second, we say the practical consequence of routine

22 compellability will be that the warring parties, particularly the side

23 that's not favoured by the UN, will deny opportunities to journalists to

24 visit, to have interviews, to inspect, to enter prisons, to do the kind of

25 things that might lead to the uncovering of evidence, to look for war

Page 10174

1 graves and so forth. There will be greater alert to the fact that the

2 journalist is the potential hostile witness. Opportunity for observation

3 by the war correspondent will dry up.

4 We assert that and in our documents, you will find four witness

5 statements by Mr. Jones, Mr. Aidan White on behalf of the International

6 Federation of Journalists, Mr. Phillip Knightly and Mr. Roy Gutman, two of

7 the most distinguished war reporters, who state and give examples, and

8 they are more from the amici. The overwhelming evidence before the Trial

9 Chamber and before this Court -- and it's evidence that is not

10 controverted; the Prosecutor put in no evidence in the Court below, has

11 filed no fresh evidence contesting the expert evidence, unanimously from

12 the journalistic profession, that opportunities will be less unless there

13 is for reporting of war crimes -- unless there is a protective rule.

14 The third public interest arises also from the war correspondent

15 being a hostile witness. It makes it more hazardous for the correspondent

16 himself. We have seen how the fear of international criminal justice, of

17 retribution, has caused in East Timor, mass graves to be dug up by the

18 wrongdoers and moved hundreds of miles across the border of west Timor in

19 an effort to avoid war crimes investigations. We have seen in Kosovo mass

20 graves being dug up and bodies re-buried in a police station outside

21 Belgrade, and in the Danube -- in freezer lorries, in the Danube. If

22 those responsible for war crimes are prepared to destroy evidence, then of

23 course they are prepared to destroy potential witnesses and a journalist

24 who does become privy to evidential, potentially evidential material will

25 find life rather more hazardous. The danger of being arrested and dealt

Page 10175

1 with as a spy becomes greater.

2 The fourth matter of public interest is that this of course is the

3 first case in which it's sought to compel an unwilling journalist.

4 Journalists who believe that their profession -- professional rules

5 require them to refuse to testify will refuse to testify. There will be

6 confrontation and clash between the professional ethics of the journalist

7 and the orders of the court. These potential confrontations can be

8 removed by a clear, bright line rule of the kind that we invite the Court

9 to adopt. And we have taken it indeed from the suggestion of

10 Judge Goldstone at paragraph 36 of our case, we set out Judge Goldstone's

11 view that -- and he sums it up in a nutshell that like aid workers and Red

12 Cross or Red Crescent delegates, if reporters become identified as would

13 be witnesses their safety and future ability to be present at a field of

14 battle will be compromised. I would support a rule of law to protect

15 journalists from becoming unwilling witnesses in situations. That would

16 place them in future jeopardy. They should not be compelled to testify."

17 And so that is the position of Judge Goldstone on which we rely.

18 The -- finally the fifth public interest is that we believe that

19 there are dangers to this court's own reputation if it approves the

20 routine summoning of journalists as Prosecution witnesses. You'll be only

21 too aware many supporters of defendants indicted by this court blame the

22 media. They certainly say that the media -- they allege the media has

23 vilified or demonised the people they support. They claim the court is

24 prejudiced by the media and that the case against the -- those indicted is

25 the result of false media reports. The court, of course, gives the lie to

Page 10176

1 those, criticises when it -- when Prosecutors obtain real evidence, not

2 journalistic hearsay but real evidence from victims and the like, which

3 cannot be alleged to be tainted by the media. But if a rule that is so

4 flexible that it permits Prosecutors to summons journalists to fill the

5 gaps in their evidence, if Prosecutions are seen to rely on -- to any

6 great extent on journalists as a first resort rather than as a last

7 resort, then those allegations will gain ground. So the court protects

8 itself against unjustified allegations that it is affected by the media if

9 it keeps journalists as, I say, as a testimony -- as a last resort, only

10 when it is essential to guilt or innocence and it can't be obtained by any

11 other means.

12 So they are the five public interests that we say support the

13 evidential rule, and we say that it's clear -- we rely on Article 19 of

14 the Universal Declaration to show the jus cogens quality of the free

15 speech principle. There is no doubt, and you'll see from the cases that

16 we cite at tab 9 in Goodwin -- at tab 9 Inter-American Court decision that

17 states cannot licence journalists and tab 10, the Goodwin against UK,

18 again endorsing the special position of the journalists. And as I say, we

19 rely on the Geneva Convention and the Committee of Ministers and other

20 developing comments about the need in the public interest to protect

21 journalists.

22 So that is our position on the principle. The objections to our

23 evidential rule by the Office of the Prosecutor: They say it's new --

24 well -- and unprecedented. We say that's not an objection. They say it's

25 academic. Well, not to Mr. Randal it isn't. If he's compelled against

Page 10177

1 his wishes, if he declines, he is vulnerable to being prosecuted for

2 contempt of this court and to trial. So there's no question that it's not

3 academic for him. They say that you can rely on the Trial Chamber to be

4 vigilant. We say it's quite clear that the way this developed in the

5 Trial Chamber there was no vigilance at all. It was somewhat insouciant

6 in its issue of the subpoena without any consideration.

7 You can see the way in which the matter is reported -- was dealt

8 with on the 21st of January last in the transcript. The Prosecutor simply

9 said: Well, I want to put this article in. The Defence wants to

10 cross-examine, so I suppose we need a witness summons. And that was --

11 there was no notification to the defendant that they were going to summons

12 him. The subpoena was issued almost automatically without any

13 consideration of whether the evidence could be obtained from other means,

14 without any consideration of whether it was essential.

15 A reading of the insouciant way in which the court approaching

16 this issuance of a subpoena, which resulted in a bailiff knocking on

17 Mr. Randal's door in Paris, is -- is in the record, but what is

18 extraordinary is the behaviour of the Defence, because it seems - and

19 we'll hear from the Prosecution, and perhaps they will clarify it for us -

20 but it seems that they were quite content with having Mr. Randal's article

21 put in as evidence and they only asked the court to issue the subpoena

22 because the Defence said we have a question about the interpretation,

23 about the veracity of the translation, and we want to cross-examine. So

24 it was in the interest of the Defence, really, that the subpoena was

25 sought.

Page 10178

1 Now, there was a rather -- at the Trial Chamber Mr. Ackerman on

2 behalf of the defendant made an intervention that it didn't -- wasn't

3 exactly clear whether his intervention really maintained the position that

4 he was concerned to cross-examine -- about the accuracy, veracity of the

5 article. But in the interim, after the decision, he gave an interview to

6 an American paper the Boston Globe, in which he asserted for the first

7 time clearly that the Defence was not -- accepted the accuracy of the

8 report. Well, that rather astonished us because if the Defence accepts

9 the accuracy of the report, there would seem to be little point in

10 compelling Mr. Randal to give evidence, because the accuracy was not

11 disputed. All he wanted to ask was some background -- he said some

12 background questions.

13 Well, we have for the Court an exchange with Mr. Ackerman about

14 this matter in which we asked him in no uncertain terms to appear today

15 and to explain what the Defence position was, because it seemed to us that

16 the Prosecutor was insisting on Mr. Randal being present basically so the

17 Defence could cross-examine him as to the accuracy of the translation.

18 But in this -- in these facts that we received from him -- it's the second

19 document. It will have to be translated for you obviously, but it was

20 only very recently -- he makes clear in the penultimate paragraph that

21 his -- I quote: "The insistence on Randal, as opposed to the other

22 reporter, is precisely because Randal's report, while accurate, does not

23 properly place the story in the context of the moment. If he comes to

24 testify, he will probably do so."

25 So it would seem now - and it is bizarre that Mr. Ackerman has not

Page 10179

1 communicated his position to the Court, although he was allocated ten

2 minutes to present his defence - but it would seem on the basis of this

3 material that what he wants to do -- that while he accepts that the

4 article is accurate, he now simply wants to ask some questions about

5 background and context, so that the -- it cannot any longer be claimed by

6 the Prosecution that on whatever rule is adopted, if we adopt -- if the

7 court adopts the test that we urge upon it, namely that the journalist

8 should only be subpoenaed if the evidence is crucial or essential to the

9 Prosecution or Defence, the evidence obviously isn't now essential to the

10 Prosecution because there's no objection to the accuracy of the story, and

11 it's not essential to the Defence because they accept the accuracy of

12 Mr. Randal's report. They simply want to ask him some questions about

13 background. That doesn't satisfy the test of -- that we urge, the test

14 of -- that it's crucial, and it hardly satisfied, one might think, the

15 test even of the Trial Chamber, which was a general test of relevance of

16 the kind that applies to all witnesses. So we will have to hear finally

17 from the Prosecutor as to why they say it is essential to have Mr. Randal

18 testify.

19 In the -- I have -- as we said, I think, in our response that

20 the -- what is bizarre about the Prosecution's claim that Mr. Randal is an

21 important witness is that they filed 120 pages of pre-trial brief in

22 October 2001, and in that 120 pages of the evidence against Mr. Brdjanin,

23 there was not a single mention of Mr. Randal or his article. How comes it

24 a few months later that Mr. Randal is essential to the Prosecution when

25 they don't mention him at all when they set out all the evidence they have

Page 10180

1 against Mr. Brdjanin?

2 At page 22 of the Prosecutor's brief, it says at the top:

3 "Brdjanin made many public statements that served to incite Serbs against

4 Muslims and Croats to and terrorise non-Serbs into fleeing. Witnesses

5 will recall hearing Brdjanin state repeatedly to the mass media that only

6 2.000 Muslims could remain in the city. A witness who kept a regular

7 diary will give account of events in Banja Luka." So that it's not a case

8 that the evidence that Mr. Randal could give, which is hearsay evidence,

9 because he doesn't speak the language and is -- but is in any event now,

10 it appears, not contended to be accurate, but the evidence that Mr. Randal

11 could give is being obtained in the relevant conspiracy period, is going

12 to be given or has been given by many other witnesses, and how comes it

13 that this supposedly essential evidence is not even mentioned when the

14 Court is invited to confirm the indictment and let the case go ahead? So

15 that's a question really for Ms. Korner to answer in her address to the

16 Court. But we say that reverting, if I may, to the questions that the

17 President outlined at the beginning, we say that the -- there are at least

18 five crucial public interests that justify a special evidential rule. We

19 have sought to give a formulation of that rule in paragraph 18. We accept

20 that there may be many better formulations. It's -- no doubt the Court

21 will produce its own. But whatever formulation, it should require that

22 journalists are only coerced where their evidence is absolutely essential

23 to prove that the defendant is guilty or to raise a reasonable doubt about

24 the defendant's guilt.

25 And so far as the application of that rule to the facts of this

Page 10181

1 case, we have the extraordinary position that the evidence that the

2 Prosecution seeks to obtain was not once mentioned in its pre-trial

3 brief. And where the Defence, having initially taken issue with the

4 accuracy of the article, is now going to accept the accuracy of the

5 article and only ask Mr. Randal some background questions.

6 Well, Mr. Randal is not an expert witness, although he was a war

7 correspondent in the area. His opinions on the context and background in

8 February 1993 may be of interest, but it is wrong in principle, we would

9 say, on any view to force Mr. Randal to give evidence if the evidence he

10 can give is merely personal opinion, background, which may be of interest

11 to the Court or of interest to the Defence but is in no sense crucial.

12 The cost of not having a protective rule is a cost to war correspondents,

13 a loss of professional neutrality, a drying up of opportunities to report

14 on war crimes, and perhaps in extreme circumstances a danger to their own

15 security, and all those -- for all those reasons, we would urge the Court

16 to uphold this appeal. Thank you.

17 JUDGE JORDA: [Interpretation] I thank you, Mr. Robertson, and I

18 see you've respected the time limit.

19 And I would now like to hear the arguments of the amici curiae,

20 one of you, the one who is going to address the Trial Chamber.

21 MR. ABRAMS: [Microphone not activated] Mr. President -- excuse

22 me, Mr. President, and members of the Court, at the outset I would like to

23 thank the Court for the opportunity of appearing before you.

24 JUDGE JORDA: [Interpretation] I don't hear you for the moment. I

25 apologise.

Page 10182

1 MR. ABRAMS: Can you hear me now, Your Honour?

2 JUDGE JORDA: [Interpretation] Yes. Can the booths hear me?

3 MR. ABRAMS: Shall I try again?

4 JUDGE JORDA: [Interpretation] Can you hear me? I haven't received

5 any interpretation on channel 5. We still have a problem with channel 5.

6 It's all right now. So I apologise, but channel 5 is working

7 now. I apologise for make you repeat this. Please go ahead.

8 MR. ABRAMS: Thank you very much, Mr. President. Thank you very

9 much, members of the Court for the opportunity of appearing here today.

10 It's an honour that I will long remember. And thank you even more for the

11 chance to speak on behalf of my clients, the amici curiae, by permitting

12 them to be heard by you in a case which not only affects Mr. Randal and

13 any other journalists who may be called to testify before this case in

14 this court but the ability of all journalists to report on the tragic

15 events that all too often occur, all too routinely occur, during wartime.

16 I don't think we overstated the point in our brief when we said that the

17 submission we made to you may well be by the largest and most diverse

18 group of journalists and journalistic organisations throughout the world

19 ever to join in a single brief. These organisations and individuals

20 literally spanned the world. They come from five continents. They speak

21 the two languages that are the official languages of this court, and many

22 others. Their cultures differ markedly. But today they come as one to

23 seek the assistance of the court, the protection of the Court. Many of

24 the journalists for whom I speak today have themselves reported from war

25 zones. Three of the 34 organisations that we represent are based in

Page 10183

1 Belgrade; another in Croatia; another in eight nations in south-eastern

2 Europe, including Bosnia, Croatia, Yugoslavia, and Macedonia. Still

3 another is in Sri Lanka. All these countries, all these areas of the

4 world have seen warfare and repeated internal acts of violence within

5 their own countries and all of them have seen journalists die in their

6 coverage of these events.

7 Others of the amici come from nations as diverse as Nepal, South

8 Africa, Greece, Australia, the United States, and Canada, and in the case

9 of Reporters sans frontieres, the eight French-speaking places and nations

10 in the world. In case after case, for organisation after organisation

11 that I speak for today, they have all too often received a tragic notice

12 of injury or worse in covering warfare. And the core of what I come to

13 you to say today can be phrased simply: Subpoena journalists last.

14 Establish, we ask of you, some sort of legal test which will require a

15 demonstration by a party who seeks to subpoena a journalist before this

16 court that his or her information is truly essential to a proceeding

17 before you and that it cannot be obtained elsewhere. This may be viewed

18 in strictly legal terms as a request for a privilege. It may be viewed as

19 a plea for the articulation of a legal presumption that journalists not be

20 called to testify. It may simply be understood as a way to assure that

21 journalists who are assigned or otherwise choose to speak with the sort of

22 people who may ultimately appear before courts such as this. They can

23 take some comfort in the notion that they will not routinely be called

24 upon to testify against their sources. To testify, that is to say,

25 against the people they have interviewed, but will be permitted to

Page 10184

1 continue to serve as journalists at their very best, independent,

2 autonomous, objective observers who seek to convey to the world what they

3 have seen and learned.

4 I want to be clear that I am not suggesting any special nobility

5 for journalists. Journalists have as many people who are lacking in

6 competence and even goodness as the law does, but journalists perform a

7 special function, a special service. They play a special role, and when

8 they cover the area of war combat, that role is to describe, as best they

9 can, as clearly as they can, as independently as they can, what has

10 occurred. If this Court were to agree to the articulation of some such

11 threshold test as we and Mr. Robertson have outlined for you, it will not

12 mean that journalists will not be and not remain of assistance in the

13 investigation of war crimes by uncovering evidence that war crimes

14 investigators may have yet to uncover. It does not mean that journalists

15 will fail to cooperate, as they have, with this Court by making

16 information available to its investigators. But the prime way that

17 journalists make information available is by writing about it,

18 broadcasting about it, performing their function as journalists.

19 And if this Court were to establish the principle that we urge

20 upon you today, and it is the second point of the President's articulation

21 of questions to us today, it does not mean that the Court would be tying

22 its hands so that a journalist could never be subpoenaed if it were truly

23 necessary to do so. We too seek a qualified privilege, one which avoids

24 requiring journalists to testify simply because they might or could or

25 possibly might have information which, on one theory or another, might

Page 10185

1 have some relevance to a case.

2 I want to be clear at the outset that we well appreciate that the

3 Trial Chamber's ruling is by no means inherently hostile to the notion of

4 free expression. The opinion said - it said clearly and it said without

5 the least hesitation - that it fully acknowledged the importance that

6 journalists should not be subpoenaed unnecessarily and that the summoning

7 and examination of journalists before this and similar courts and

8 tribunals be conducted and regulated in a way which will not unduly hamper

9 or otherwise obstruct the vital role of news-gathering of journalists

10 and/or the media. Indeed the opinion went further. It acknowledged that

11 in cases in which confidential sources of journalists are involved, it

12 would be, in the language of Trial Chamber, a step in the wrong direction,

13 a step backwards, a severe blow to the freedom of expression of

14 journalists, the freedom of the media, if this Trial Chamber were to

15 accept a standard lower than upheld in the Goodwin case. Indeed, I think

16 it fair to say that the ruling made plain, and if anything the arguments

17 leading up to the ruling made plainer still, that it was the absence of

18 any confidential source in this case that led the Court to its ruling.

19 That, the Court said, is the heart and soul of the mentioned pretended

20 qualified privilege. That, the Court said, related to something

21 fundamental, quote unquote. This case, however, the Court concluded, was

22 one in which nothing fundamental was involved, this particular aspect of

23 this case. A journalist, in the words of the Trial Chamber, who had no

24 problem with revealing to the entire world the accused's alleged

25 declaration in a publication, was not, according to the Trial Chamber,

Page 10186

1 entitled to any particular or special consideration at all. The Court

2 phrased its conclusion fairly, concisely and clearly, and the conclusion

3 was, "Once the decision to publish the accused's alleged declarations was

4 taken and implemented by him, Randal has no right to pretend that he may

5 not be questioned on what he published." Accordingly, the Trial Chamber

6 concluded, this whole case has been misperceived by Randal, and I would

7 add presumably by the later filed briefs of the amici curiae as well.

8 With respect, we disagree with those conclusions of the Trial

9 Chamber that I have just read to you. There is, we think, something

10 fundamental at stake. It is nothing less than the ability of the press to

11 cover news in war zones, to interview people who may have committed

12 heinous acts worthy of this Court's review. If that were not so, if my

13 clients did not believe that was so, they would not have signed on to the

14 brief that all of them have indeed fully subscribed to.

15 What is the problem? Why should a court treat a journalist who

16 interviews an individual who winds up as a defendant before this Tribunal

17 any differently than any other potential witness? Are we, as the Trial

18 Chamber concluded, misperceiving the issue before the Court because, as

19 that Court determined, once the decision to publish was made, Randal has

20 no right to pretend that he cannot be questioned about it?

21 Our position is straightforward. We believe - and we believe that

22 the factual record before this Court can lead only to this conclusion -

23 that journalists will simply be unable to continue to serve their readers

24 and in that significant way to serve that court, if the rule of law to be

25 applied is that publication of an interview who is charged before this

Page 10187

1 Tribunal leads to the inevitable result that the journalist may thereafter

2 be called to testify as a witness against the individual who he has

3 interviewed.

4 Here, I think the opinion of the Trial Chamber could hardly be

5 clearer. It did not apply a balancing test, notwithstanding the language

6 that I read to you earlier with which we fully agree. It did not apply

7 any balancing test at all. It held that there was no interest, none at

8 all, nothing to be balanced, against the interest of the Prosecution or

9 the Defence in this case in having the journalist come and testify. So

10 long as the information had been published by the newspaper involved, so

11 long as the Washington Post had published that information, that was the

12 end of the inquiry so far as the Trial Chamber was concerned. And so

13 notwithstanding the conclusion of the Trial Chamber that journalists

14 reporting on conflicting areas play a vital role in bringing to the

15 attention of the international community the horrors and reality of the

16 conflict, notwithstanding the conclusion of the Trial Chamber that it was

17 the brave efforts and reporting of journalists in the former Yugoslavia

18 that in part contributed to the establishment of this Tribunal, the

19 ultimate conclusion of the Trial Chamber was not that it should try not to

20 interfere with the very reporting it had so praised, but that - and I

21 think I do no violence to the ruling by characterising it this way -

22 precisely because the journalistic efforts are so potentially useful,

23 journalists must understand that they should be on call to testify about

24 their reporting. This is the way the Trial Chamber put it. These

25 reports, the Court said, the reporting that is of journalists, these

Page 10188

1 reports would lose much of their weight and relevance for this Tribunal if

2 the ensuing pretended privilege of journalists are framed in such a way as

3 to render the utility of their reports for the purposes of this Tribunal

4 totally dependent upon the wish or the sole discretion of the journalists

5 concerned, and therefore potentially useless. And here, with respect, we

6 believe the Trial Chamber missed the point completely. The ultimate

7 utility of reporting done by journalists lies in informing the public.

8 Journalists do not engage in their work for the purpose of being useful to

9 any tribunal by offering testimony against people they interview. They

10 are useful to everybody, including this Court, by gathering truthful

11 information and reporting it accurately to the public.

12 What then is the problem? What is our answer to question one, as

13 phrased to us so acutely by the President? Common sense tells us, as well

14 as the affidavits before this Court, that sources simply will not speak to

15 journalists if they once understand that the price of doing so is that the

16 journalists may next appear in the dock testifying against them. I urge

17 the Court in that respect to review the statement submitted on behalf of

18 one of our clients, Radio B92 in Belgrade. It is an independent radio

19 station in Belgrade that has covered war crimes issues extensively and has

20 been at the forefront of transforming cultural influences in

21 post-Milosevic Serbia.

22 Mr. Veran Matic, the radio and TV editor of the station, had the

23 following to say. It is in Exhibit D to our submission. He said, "When

24 you make your living as a journalist in this region, with so many war

25 criminals still at large, where the general public is still reluctant to

Page 10189

1 face up to its recent past, the investigative role of journalists is

2 particularly important. B92 is committed to reporting on war crimes and

3 exposing the atrocities from our past. It is very difficult to persist in

4 this important task if the general frame of mind and attitude towards

5 recent crimes remains unchanged. This process is further hampered by

6 reluctance on the part of the authorities to support the disclosure of

7 facts about these crimes as well as the lack of regulations which would

8 force the government to allow access to the needed information, make

9 archives and secret police files accessible to public and provide legal

10 protection for journalists." Mr. Matic concludes by saying, "I believe

11 that journalists should be protected from testifying unless it is

12 absolutely necessary to the case in question, as this would endanger the

13 position of all journalists and media reporting and investigating of the

14 crimes in the former Yugoslav republics."

15 Another articulation of the same view was offered in an article by

16 William Safire which we annexed as Exhibit C, in which in relevant part,

17 Mr. Safire observed that the reason to resist becoming a participant in

18 any proceeding such as this, the reason for a journalist to resist, is

19 obvious. If dictators see reporters as potential witnesses in

20 prosecutions, tyrants in trouble will be likely to kill these witnesses.

21 As Jonathan Randal himself urged in resisting the subpoena, journalists

22 would as a collective profession be at greater risk of harm and danger.

23 This is not a question, Mr. Safire argued, of protecting sources. The

24 interviewee in this case was directly quoted. The central issue goes to

25 the heart of protecting human rights. Will courageous journalists be able

Page 10190

1 to gain access to war zones as objective observers not just to tell which

2 side is winning but to bear witness to the murder and rape of innocents?

3 Now, it is in response to pleas such as these, pleas that are

4 applicable in cases such as this in which journalists are asked to testify

5 against their disclosed as well as undisclosed sources, that we come

6 before you to ask you to do nothing more than to assure or try to assure

7 that journalists are not subpoenaed unless it is necessary, really

8 necessary, to do so, unless their testimony is truly needed, unless their

9 testimony can not be obtained elsewhere.

10 I repeat, we do not come here seeking an absolute privilege from

11 this Court. We are not arguing that there are no circumstances in which a

12 journalist who has interviewed an individual who later becomes a defendant

13 in this Court may be called to testify about what was said. We simply

14 seek the articulation of the principle and the application of that

15 principle in this case, that journalists, particularly when they write

16 about the sort of issues that come before this Court, and I think it fair

17 to predict will continue to come before this Court, require a level of

18 protection against routinely becoming witnesses to their own interviews.

19 This is not, if the Court please, as the Trial Chamber's ruling

20 seemed to think it was, some sort of abstract exercise, some matter of

21 essentially abstract, academic interest. The word "academic" is generally

22 used in a pejorative way by lawyers. This is truly a matter directly

23 affecting the ability of journalists to do their work, the very work the

24 Trial Chamber acknowledged had been so useful in bringing the attention of

25 the international community to the horrors and realities of the conflict.

Page 10191

1 And this cannot occur, we believe, and the journalists that I represent

2 believe, if journalists routinely come to be viewed as potential

3 witnesses.

4 The affidavit that we submitted as Exhibit D by Elizabeth Neuffer

5 a Boston Globe reporter who has been extremely active in covering and

6 uncovering war crimes, is particularly apposite. She observes that, "If

7 this Court, if this Tribunal, were to establish a legal precedent that

8 journalists could be compelled to testify before a war crimes court about

9 either confidential or non-confidential sources, I sincerely believe most

10 of the reporting -- excuse me, I sincerely believe much of the reporting I

11 did and continue to do on war crimes would not have been possible."

12 As I previously said, the test established by Trial Chamber not

13 only does not provide the protection that we seek today, but that as its

14 core provides no protection at all, the Court did not engage in a

15 balancing test. It could not engage in a balancing test having once

16 concluded that so long as the material was published, there was nothing to

17 balance. The Trial Chamber, in denying Mr. Randal's motion to set aside

18 the subpoena and in refusing to recognise any -- any -- journalistic

19 privilege at all, called for a delicate balancing exercise of the right to

20 freedom of expression on one side and the rights of the accused and the

21 Prosecution on the other. We agree. We agree with that very notion. But

22 that does not occur, and again cannot occur, if the rule of law is to be

23 that so long as information is published, there is no journalistic side of

24 the equation at all, there is nothing to be delicate about at all.

25 The standard that we propose and that Mr. Robertson set forth to

Page 10192

1 you at greater length will have a number of advantages. One of them is

2 that it will avoid unnecessary conflicts between journalists and this

3 Tribunal or other War Crimes Tribunals. And I deliberately speak,

4 incidentally, of other tribunals as well because I think it fair to say

5 that whatever this Tribunal does is likely to have enormous precedential

6 weight in other tribunals around the world as they make their

7 determinations as to what the rule of law should be on this subject. Our

8 position is that in a system where the Court seeks journalistic testimony

9 as a last resort, the testimony often will not be needed at all. That is

10 the experience of the Department of Justice in the United States.

11 I have cited to the Court at some length the provisions of the

12 internal rules of the Department of Justice. I want to be very clear and

13 candid with the Court about them. They do not have the force of law in

14 the United States. They are internal guidelines of the Department of

15 Justice, but they have been enormously successful in cushioning any

16 potential conflict between the press and the government by assuring that

17 in well over a majority of the cases in which a Prosecutor might think

18 that it might be useful to call a journalist, that the journalist was not

19 called at all. And there was no need for lawyers like me to become

20 involved and no basis for courts to become involved, and no reason to have

21 conflicts. If the information was important enough, and it sometimes is,

22 if the information is important enough and not obtainable elsewhere, those

23 guidelines permit the Department of Justice to issue a subpoena, and they

24 sometimes do just that, but unless the information is that important, no

25 local Prosecutor in the country, no federal official in the country, may

Page 10193

1 simply issue such a document. And it is that sort of approach which we

2 urge upon this Court today. We think if you were to do that, journalists

3 will be better able to perform the very tasks that the opinion of the

4 Trial Chamber recognised that journalists have so often and so ably

5 performed in this very area and some of those efforts, by way of

6 illustration only are set forth in the various affidavits before you.

7 I repeat something Mr. Robertson said: The record before you on

8 this issue is undisputed. Journalists work frequently, aids the

9 investigation of war crimes by uncovering evidence that war-crime

10 investigators have yet to uncover. But primary way that that occurs is by

11 the publication of the journalists, of what have learned. The

12 publication, the broadcast, the announcement to the public at large is the

13 place to which the investigators then go to get information.

14 We have cited, and I will not take up your time by reviewing again

15 example after example in which journalists work together with

16 investigators in a way beyond simply reporting, and nothing in the

17 privilege that we have set forth or that we are asking for would prevent a

18 journalist from doing that.

19 Now, I referred earlier to the reality that war correspondents

20 already face grave dangers in the field and the concern by the various

21 clients that I represent here today, but compelling their testimony could

22 only augment their safety risks. As Ms. Neuffer stated in her affidavit

23 to this court, covering stories about wartime situations is dangerous

24 business. Potential war criminals might see journalists as potential

25 enemies if they knew that journalists could be compelled at some later

Page 10194

1 time to testify against them at the Tribunal.

2 Now, we are well aware, Your Honour, that no journalist and even

3 no collection of journalists can know for sure what would happen if

4 certain other events had not happened. We cannot tell you with empirical

5 certainty that if journalists are subpoenaed and subpoenaed and subpoenaed

6 that people will stop talking to them. But we think we have some sense of

7 the reality of the world, and what the journalistic testimony before

8 offers to you, what it tries to offer to you, is some sense of that

9 reality, and it is a reality that conforms, as I have said, to common

10 sense.

11 Why would someone such as this defendant have chosen to speak to a

12 journalist knowing that the information would be public, knowing that the

13 information would be published, perhaps even wanting the information to be

14 published? Why would he speak to a journalist if he once understood that

15 he was not just speaking to a journalist, not just speaking to the world,

16 as it were, through the journalist, but putting himself in a position

17 where the journalist himself would be a likely or a possibly likely

18 witness against the individual who did the speaking?

19 I have three questions that continue to recur to me as I think

20 about this issue, all of which relates to the very first issue raised by

21 the President today: Is it conceivable, I ask myself, is it conceivable

22 that someone who could be subject to the criminal processes of this court,

23 who gives an interview, now anticipates that the reporter to whom he

24 speaks will one day testify against him before this Tribunal? Is it

25 imaginable that this or any defendant would have been so open with

Page 10195

1 Mr. Randal or any other journalist if he believed that Mr. Randal would

2 later be required to testify against him? Is it not likely that

3 combatants who see reporters as potential adversaries and adverse

4 witnesses will start viewing them as threats, either by not speaking with

5 them at all or by taking less specific measures to avoid any risk of

6 adverse testimony by them?

7 Now, Mr. Robertson and I have both cited many cases in our

8 briefs. There is no case law in this court and to our knowledge and my

9 knowledge, at least, any war crimes court which deals with this issue.

10 There aren't a whole lot of cases which do. I do urge upon this court,

11 however, that the privilege established by this court for its own

12 employees and functionaries in the Music case is relevant in one way, and

13 that is because the Court stated that it would "Not only be undesirable

14 but also invidious to compel an interpreter --" and that case dealt with

15 interpreters -- "an interpreter into the area of conflict on behalf of

16 either party to the proceedings for the determination of an issue arising

17 from such proceedings." The Court said, "This should not be encouraged or

18 otherwise exist for the determination of the issue." And those words are

19 words that we now repeat to this Court. We are seeking a rule of law that

20 where other ways exist for the determination of the issue, where there is

21 other evidence of the same sort or other places to go for the same

22 evidence that the journalist should not be first approached.

23 As regards the legal side itself, I would urge the Court to -- in

24 terms of US precedent to focus with particular interest on the Shoen

25 versus Shoen case of the Ninth Circuit. There are a few cases - only a

Page 10196

1 few, but a few - which are now contrary to that ruling, particularly in

2 the Sixth Circuit of the US in the case quite correctly cited by the

3 Prosecutor. The Shoen case cited case law and basically concluded that

4 the majority rule in the US - and it still is - is that there is a

5 qualified privilege with respect to non-confidential as well as

6 confidential material.

7 Now, entirely aside from the question of the majority rule in a

8 jurisdiction, which does not, of course, govern in this court, I was

9 particularly struck by the quotation in that opinion of the -- and the

10 adoption of the Court of the rules -- of the Law Review article that the

11 Court cited which contained the following observation quoted in the

12 opinion: "It is the compelled disclosure of non-confidential information

13 that harms the press's ability to gather information by damaging

14 confidential sources, trust in the press's capacity to keep secrets, and

15 in a broader sense by converting the press in the public's mind into an

16 investigative arm of prosecutors and the courts. It is their independent

17 status that often enables reporters to gain access without a pledge of

18 confidentiality to meetings or places where a policeman or a politician

19 would not be welcome. Once perceived as an adjunct of the police or the

20 courts, journalists might well be shunned by persons who would otherwise

21 give them information without a pledge of confidentiality, barred from

22 meetings they would otherwise be free to attend, and to describe or even

23 physically harassed if seen taking notes or photographs at a public

24 rally."

25 With that, Your Honour, I will conclude. It seems to us that this

Page 10197

1 Court has a special opportunity as well as an obligation that faces it

2 today. The opportunity is one which as a pragmatic matter we believe

3 would be of assistance to the Court, but I speak not for the Court but for

4 my clients today. We come here to urge you to use the opportunity that

5 you have to adopt a rather modest - and we believe it is - rather modest

6 rule, a rule of law, a rule of practice, a rule of procedure, a rule to

7 avoid unnecessary conflict, a rule which simply requires the Prosecution

8 or if one views this in a sense -- because as Mr. Robertson has described

9 the strange situation in this case of the Prosecution wanting a document

10 in evidence which the defendant no longer argues is not true -- whoever

11 wants the information, to simply require them -- in a situation in which a

12 journalist has information, to simply require them to make a showing to

13 the Court of the centrality of the information to the case and the

14 unavailability of the information elsewhere.

15 Thank you very much, Mr. President.

16 JUDGE JORDA: [Interpretation] Thank you well. I thank you very

17 much.

18 We will continue with our programme after the break. We will

19 recommence at 11.00. We might ask some questions, but if not, we will

20 hear the Prosecution. The hearing is adjourned.

21 --- Recess taken at 10.40 a.m.

22 --- On resuming at 11.03 a.m.

23 JUDGE JORDA: [Interpretation] The hearing shall recommence.

24 Please sit down.

25 Let me see, with my colleagues, to see whether we have heard all

Page 10198

1 the arguments from the appellant and the amici curiae, which are very

2 strong in favour of journalists and war correspondents, and we still have

3 to hear the arguments of the Prosecution. Have my colleagues any

4 questions at this stage? Yes?

5 JUDGE GUNEY: [Interpretation] Thank you, Mr. President. To focus

6 on the questions that concern us, I have three questions to ask, and I

7 would like, if possible, to address myself to Mr. Robertson for his

8 answers.

9 In accordance with general international interests and

10 international law, as it progresses, do journalists come under the

11 category of professional secrets? If the answer is positive, that is if

12 they are bound by professional secret, is that an absolute obligation or

13 is it relative or partial? If it is relative or partial, which are the

14 limits, which are the constraints? And testimony with respect -- with

15 regard to a person who is being detained or judged for a crime or an

16 offence, when a person is bound by confidentiality and yet has important

17 evidence, without the rule or law obliging him to testify? Those are my

18 three questions.

19 JUDGE JORDA: [Interpretation] Mr. Abrams or Mr. Robertson.

20 Either? Gentlemen?

21 Mr. Robertson, please go ahead.

22 MR. ROBERTSON: I'm very grateful for that question on

23 professional confidentiality. I would refer you to the European Court of

24 Human Rights decision in the case of Goodwin against the United Kingdom.

25 It is at tab 10 of the bundle of cases which I presented to the Court. It

Page 10199












12 Blank pages inserted to ensure pagination corresponds between the French and

13 English transcripts. Pages 10199 to 10204.













Page 10205

1 was a case in which, as I recollect, I appeared for Mr. Goodwin in the

2 Court. He was a young business journalist who had been threatened with

3 contempt of court by the English courts for refusing to disclose the

4 source of a story. It was thought by the Courts that the source might

5 well have been the person who had stolen a document, and so there was a

6 possibility that the source was a criminal. And the -- on the basis of

7 the argument -- of the decision of the European Court of Human Rights, it

8 based itself on Article 10 of the European convention, which as you know

9 reflects Article 19 of the Universal Declaration of Human Rights, the

10 freedom of expression principle, and so it held that the protection of

11 journalistic sources was indeed a matter of international law.

12 So that the answer to your first question, I think, is -- can be

13 positive on the basis of the authority of the European Court of Human

14 Rights, that journalists are indeed bound by professional confidentiality

15 and the courts have an international law duty to uphold that

16 confidentiality. Otherwise, sources will dry up.

17 The second question, is it absolute or is it relative? I think

18 the answer to that is that it is limited. What the Court must be

19 satisfied before ordering a journalist to reveal his source is that the

20 result will be necessary, not convenient or expedient, but that it is

21 necessary in the interests of justice. In other words, that it is crucial

22 to either prove guilt in criminal cases or to show that there is a

23 reasonable doubt. I'm looking at the decision of Goodwin to get the

24 principle, and I don't know that there is a pithy expression.

25 Paragraph 35 is the one in which the principle of the --

Page 10206

1 paragraph 46 is the paragraph in Goodwin where it insisted that there must

2 be a reasonable relationship of proportionality between the aim pursued by

3 the disclosure order and the means deployed to achieve that aim, and

4 the -- because there was not a reasonable relationship of proportionality,

5 the restriction which the disclosure order entailed on the applicant's

6 exercise of his freedom of expression cannot therefore be regarded as

7 having been necessary in a democratic society for the protection of the

8 rights of the other party.

9 And the paragraph 39 we also rely on to show that protection of

10 journalistic sources, the Court says in the second sentence of

11 paragraph 39, is one of the basic conditions for press freedom as

12 reflected in the laws of contracting states. Without such protection,

13 sources may be deterred from assisting the press and informing the public

14 on matters of public interest. As a result, the vital public watchdog

15 role of the press may be undermined and the ability of the press to

16 provide accurate and reliable information may be adversely affected.

17 Having regard to the importance of the protection of journalistic --

18 THE INTERPRETER: Could counsel slow down, please.

19 MR. ROBERTSON: [Previous translation continues] ... in a

20 democratic society and the potentially chilling effect an order of source

21 disclosure has on the exercise of that freedom, such a measure cannot be

22 compatible with Article 10.

23 So, one, there is an international law right to protect

24 confidentiality; two, it is not absolute; but, three, it will --

25 journalists will only be ordered to disclose their source where the

Page 10207

1 information is crucial in the interests of justice. In a criminal

2 context, to prove guilt or to negative guilt.

3 I hope that answers your question. Of course we are not primarily

4 concerned with confidential sources. My argument is that the

5 protection -- the rule protecting journalistic confidence is not a rule in

6 itself, but the paragraph that I've quoted shows that it comes from the

7 wider rule protecting freedom of expression. Here the war -- Mr. Randal's

8 source is not being protected because the source is known. The relevance

9 of protection of sources is of course that once a war correspondent, any

10 journalist, goes into the witness box and is under cross-examination, the

11 cross-examiner may probe, may get their notebooks, the notebooks may

12 contain names of sources. So there is an indirect threat to the war

13 correspondent's sources by the very fact that he is put in the witness box

14 and is at the mercy of the cross-examiner in the sense of what he may be

15 asked and what the cross-examiner may find out and pass on to the client

16 about the sources that the journalists had at the time. So although

17 Mr. -- it's not directly relevant in Mr. Randal's case, it is a

18 consideration that we submit the Court should bear in mind in framing its

19 exclusionary rule.

20 JUDGE JORDA: [Interpretation] And Judge Gunawardana and then

21 Judge Meron and then Judge Shahabuddeen.

22 Judge Gunawardana, please.

23 JUDGE GUNAWARDANA: My question to Mr. Robertson: Even if the

24 rule is granted on the terms that you have suggested, would you want this

25 Court to decide on whether the journalist, Mr. Randal, is liable --

Page 10208

1 protected by such a rule? Because I have in mind, if you look at the

2 problem on the basis of relevancy and admissibility, the piece of evidence

3 that is being contested is in relation to the observation made by

4 Mr. Randal in regard to the demeanour of the witness. Therefore -- and

5 that demeanour is relevant to the question of intention, and intention is

6 part of the ingredients of the offence that the accused is charged with.

7 So in that context, will the rule - as applied by you, granted - protect

8 Randal?

9 MR. ROBERTSON: My answer to that is an emphatic yes. The rule

10 that I contend for requires as the first step for the Court to be

11 satisfied that the evidence is essential. What is essential about

12 Mr. Randal's article or statement? There is no question now that it

13 accurately represents what was said. All that Mr. Randal can add -

14 because he can't any way speak Serbo-Croat, so he doesn't know what went

15 on between the interpreter X, the other correspondent who could, and the

16 defendant Brdjanin - but all he can say is the demeanour of Mr. Brdjanin

17 during the interview, whether Mr. Brdjanin was happy or angry or whether

18 the sweat was pouring from his brow or whether he was sad or whether he

19 was -- seemed to be -- because facial gestures can, as I think Shakespeare

20 once said, "There's no art to find the mind's construction in the face."

21 And so demeanour can be -- can lie, can be misleading. However,

22 it has a marginal relevance, not much, and our test is whether the

23 evidence is crucial, the evidence of demeanour being, A, capable of being

24 misinterpreted or being misleading and, B, being of only marginal or very

25 little relevance and certainly not crucial or essential. The test would

Page 10209

1 be failed by the Prosecution in putting that to Mr. -- in getting that

2 evidence in. So that yes, we would want the Court to decide that

3 Mr. Randal is protected under the rule, because under the rule as we

4 contend for it, he certainly would be protected because the evidence of

5 demeanour is of so little weight. We might also add that it could be

6 gotten elsewhere by subpoenaing X, because X is -- who was the actual

7 speaker, the Prosecution has actually met X and for reasons unknown has

8 declined to call him. But leaving that aside, I think the essential

9 reason why the demeanour evidence would fail on our test is that it's not

10 important evidence. It might be of interest, it might even be called

11 pertinent, but it is certainly not evidence that is important.

12 JUDGE JORDA: [Interpretation] Judge Meron?

13 JUDGE MERON: Thank you, Mr. President. This is indeed, as both

14 counsel have indicated, a very important appeal. I will have a question

15 to Mr. Robertson first and then to Mr. Abrams second. First, let me say

16 that this appeal requires us indeed to consider and to fashion the proper

17 balance between two fundamental interests: On the one hand, the ability

18 of members of the press to carry out their essential function, their

19 essential role of independent and vigorous investigation and reporting, a

20 role which is quite elemental to the functioning of open societies and as

21 an instrument in the exposure of international crimes; and on the other

22 hand, the ability of International Tribunals to gather the evidence

23 necessary to reach fair and accurate judgements, an ability that rests on

24 the obligation of individuals to tell what they know.

25 Now I turn to Mr. Robertson. And let me also say that I do

Page 10210

1 appreciate that both of you are obviously trying to help this Tribunal to

2 fashion and to articulate that proper balance, and your help on that would

3 be appreciated.

4 Mr. Robertson, the test that you propose in your written

5 submission and in your earlier statement today appears to be extremely

6 restrictive. It establishes five requirements, all of which must be

7 satisfied before testimony could be compelled. It is a standard which

8 comes very close to an absolute privilege. You did mention earlier this

9 morning the internal guidelines of the Department of Defence of the United

10 States. Let me say that in the privilege, as you have articulated it

11 through those five prongs, that privilege goes far beyond anything which

12 is recognised in the United States, in either the federal or state

13 jurisprudence, but I have just noticed, and I would like to ask you about

14 that, that in answering the questions of my distinguished colleagues,

15 Judge Guney and Judge Gunawardana, you appeared to have somewhat modified

16 the five requirements in the sense that you seem to come closer to the

17 kind of formula which was suggested earlier this morning by the learned

18 counsel for the amici, Mr. Abrams. So where do we stand on that exactly?

19 MR. ROBERTSON: Let me say first that we understand that there is

20 no equivalent test of this strength in the United States because,

21 notwithstanding -- rhetoric aside, there has not been a war in the United

22 States for many years, since the 1860s, for correspondents to cover. So

23 that the situation in the United States domestic law has never had to

24 parallel the situations in Rwanda or indeed former Yugoslavia - thank

25 goodness - and the rules have been developed in the context of what may --

Page 10211

1 what one may term ordinary crime, possibly occasionally individual acts of

2 terrorism. The same applies in Britain. So that the case of the war

3 correspondent is being decided for the first time by this Court, and as

4 Your Honour says, we are inviting the Court to fashion a new rule for the

5 horror of the -- for the situation of the war correspondent who daily

6 faces bullets that he has to dodge or she has to dodge, kidnap, hostile

7 actions, and that is a very different situation, domestically. So a

8 stronger evidential rule is not therefore inappropriate for -- to protect

9 a war correspondent. However, having said that, our test at paragraph 18,

10 which I read to the Court this morning, we've always made clear, is simply

11 one formulation, and it no doubt many better ones could be suggested. And

12 the Court, Your Honours, will have to reach a determination, A, we say

13 crucial importance to its determination. Mr. Abrams uses the test

14 absolutely essential. We will be happy with either test. Ours is a

15 little stronger. Obviously it is for the Court to decide where to draw

16 the line, but really, crucial, if evidence is crucial, it is necessary for

17 the Court to consider it, to do justice. And I think that is the thought

18 behind both formulae, that the Court must consider whether not to receive

19 the evidence could lead it to a false conclusion, and therefore, whether

20 it would be perceived as an injustice if it did not hear the evidence,

21 either an injustice to the Prosecution or an injustice to the Defence. It

22 is that evidence must be of that class.

23 I think we all agree, and B is a formula that one finds routinely

24 in British law protecting journalists' papers from search and seizure,

25 that the evidence can't be obtained by any other means. Obviously if

Page 10212

1 there is another witness who can be summoned or if there is a film or

2 whatever, then you don't need the journalist. So B, I would have thought

3 is hardly restrictive or onerous, but is a matter of common sense.

4 C is a different -- I fully accept is a different situation.

5 That's the confidentiality situation which is -- so we can take C out

6 because we are not concerned with professional confidences. That needs a

7 different rule.

8 So D, that the giving of this evidence will not put him or his

9 family in any reasonably apprehended personal danger. There are cases one

10 can envisage - it may be that X is such a case - where a journalist could

11 say to the Prosecution, "If I appear in court, even with protective

12 measures, my life is at stake or my family are still living in such and

13 such a place where there will be reprisals or whatever." So that is a

14 special situation but it's a situation that I imagine would be a factor in

15 a prosecution decision in relation to any witness, be they a journalist,

16 an interpreter, or just a -- or a citizen.

17 And E, that the decision will not serve as a precedent which would

18 unnecessarily jeopardise the effectiveness or safety of other journalists

19 reporting from that conflict zone in the future, I suppose is -- could

20 really be seen as a reminder of the public interests that justify the rule

21 in the first place, and what we seek to achieve by E is simply to put the

22 Trial Chamber which is deciding the issue in mind of the public interests

23 which justify the rule. One wants to avoid decisions that jeopardise the

24 safety or the effectiveness of reporters in conflict zones. That's the

25 reason for the rule. And in this case, we saw, if you read the transcript

Page 10213

1 of January the 21st, that the Judges were simply oblivious of this whole

2 dimension. And so by writing it into the rule, we would simply hope to

3 remind the Court, the trial Court, of the reasons for the rule, and so

4 that is why E is there. But I do not, with respect, agree that this is

5 coming close to absolute or that this is very restrictive, and I fully

6 accept that there may well be other, lesser or different ways of putting

7 it. What is needed, we submit with respect, is some evidential rule that

8 spells out the circumstances in which the journalist will be forced to

9 testify rather than, as the Trial Chamber did, leaving it entirely to the

10 unfettered discretion of the court and a general sense of pertinacity or

11 relevance.

12 JUDGE MERON: Thank you, Mr. President. I have a question to the

13 amici if I may. Mr. Abrams, your proposed test looks more to the

14 importance of the testimony, to the case, and the inability of the

15 information to be acquired by other means. Am I correct in understanding

16 that this test, your proposed test, would allow the Court more leeway in

17 getting evidence that is essential for its fact-finding -- performance of

18 its fact-finding responsibilities? And the related sub-question to that:

19 Would it make any difference to the weighing process here and the real

20 proposed test if the testimony sought would go to the accused's ability -

21 I'm not speaking to the Prosecution - to the accused's ability to be able

22 to challenge evidence entered against him? Thank you.

23 MR. ABRAMS: [Microphone not activated]

24 THE INTERPRETER: Microphone, please.

25 MR. ABRAMS: Sorry, I'm not used to this. I don't think, Your

Page 10214

1 Honour, that the articulation by me of the test that I would urge on the

2 Court is very substantively different from the first two elements of

3 Mr. Robertson's test. I will say that I do find one line in particular

4 out of the Attorney General's guidelines in the US particularly powerful,

5 and that is that in their articulation of essentiality, they give an

6 example, they spell out a little more than simply the use of the word

7 "essentiality." What they mean, by saying the following: "In criminal

8 cases, there should be reasonable grounds to believe based on information

9 obtained from non-media sources that a crime has occurred and that the

10 information sought is essential to a successful investigation,

11 particularly with reference to directly establishing guilt or innocence."

12 It is in the latter part of that that I would urge on the Court

13 should inform its decision with particular force. Lots of evidence --

14 lots of potential evidence is relevant on one level of relevance or

15 another. Lots of material could lead to more material. But not much

16 evidence, but some very important evidence, is of the sort which refers

17 directly to establishing guilt or innocence.

18 Now, as regards Your Honour's second question to me about any

19 potential difference in the application of the test to a defendant, I

20 think that the language or some equivalent of it that I just read to the

21 Court might be of some greater benefit to defendants in some cases because

22 there might be a greater play in the notion of what is essential to a

23 defence than what is essential to a Prosecution. And so if -- if there

24 was material which might help to disprove or to suggest, at least, the

25 unlikelihood of a defendant's culpability, that would immediately fall

Page 10215

1 within the realm of something which is essential, and I suggest that there

2 is probably more that would fall there more easily on the defendant's side

3 than the Prosecution's side.

4 JUDGE MERON: Thank you very much.

5 MR. ABRAMS: Thank you.

6 JUDGE JORDA: [Interpretation] Judge Shahabuddeen.

7 JUDGE SHAHABUDDEEN: I happily agree with Judge Meron that this is

8 a matter of importance, and I want to join him in expressing appreciation

9 for the assistance which you have both given to the Appeals Chamber.

10 Mr. Abrams, let me turn to a matter which you were the last to

11 discuss. It concerns the question of essentiality. Now, let it be

12 supposed that you are right; then ex facie there would appear to be a

13 contradiction or a conflict with the fact that the Trial Chamber spoke of

14 pertinence. But would the Appeals Chamber have here a problem of

15 construction? What did the Trial Chamber mean when it spoke of

16 pertinence? Would it be permissible for the Appeals Chamber to construe

17 that language in the light, I think, of a thought expressed by the

18 Prosecution that the evidence, if true, constituted a direct admission by

19 the accused in the -- of the criminality charged in the indictment?

20 Objectively speaking, would that be -- would the evidence be very relevant

21 to the charge? If objectively speaking the evidence in question would be

22 very relevant to the charge, then should the Appeals Chamber construe the

23 reference by the Trial Chamber to the evidence being pertinent as meaning

24 that the evidence is pertinent in the sense that if -- if it is true, it

25 constitutes a direct admission of the criminal conduct charged and so is

Page 10216

1 not only relevant, is not only pertinent, but is very relevant and very

2 pertinent?

3 MR. ABRAMS: I have two parts to my response to the Court's

4 question. First --

5 JUDGE SHAHABUDDEEN: Mr. Abrams, it's my question. The Court may

6 not share the point of view expressed.

7 MR. ABRAMS: I have two parts of my response to your question,

8 Your Honour. First, I believe as a matter of fact that the Trial Judge

9 did make clear what his own sense was of what was before him and what the

10 test was he was applying. There was an exchange quoted in our brief, for

11 example, with Mr. Ackerman, the Defence counsel, in which he said about

12 this very issue, "Well, I'm not sure it's helpful for you to say that it's

13 important that he come testify, because if you said the opposite --" and

14 then the Judge said, "No, I said it would be useful. His testimony may be

15 useful." Mr. Ackerman: "Probably would be." The Judge: "No. It's

16 whether it's essential or not is another matter." And there are other

17 quotations to the same effect.

18 Now, that said, suppose we were to read, as you -- as a

19 possibility, suppose we were to read the Judge's statements as ones which

20 amount to on one level or another essentiality. The question then

21 becomes: What about the application of that to this case? If this were a

22 situation where when you read the article of Mr. Randal you come to the

23 conclusion, as the Prosecutor argues in her brief, that -- that this is a

24 confession. Then you might well have a situation of essentiality. I do

25 not believe, Your Honour, that that is even a plausible reading of the

Page 10217

1 article. The article itself is couched in terms of the accused - at that

2 point, of course, not the accused - but the accused saying nothing more

3 than he had personally argued that there should be a peaceful exodus of

4 non-Serbs but that the Serb leadership had not agreed with that and that

5 he was preparing laws to expel Serbs from certain government housing

6 projects. That is not - that is not - a confession. It -- one may argue

7 from it that it bears broadly on his state of mind. It is nothing as

8 compared to the material Mr. Robertson has presented you with from the

9 Prosecution's opening brief in this case, which sets forth quotations from

10 the defendant which indeed may be essential to his potential culpability

11 here, which did not require, which does not require, any media testimony

12 at all.

13 So in short, if you were to conclude that this article is a

14 confession, a true confession, then I think you'd be a lot closer down the

15 road to something approaching essentiality. Again, my own reading of it

16 is that that is not even a plausible reading. And I urge the --

17 obviously, yourself and your colleagues to make your own decision on

18 that. But if I'm right, if the only real potential relevance here - and I

19 believe this is what the Court said - the only real potential relevance is

20 that it may relate to the state of mind of the defendant months after the

21 events in question - not that he has confessed to a crime, not that he has

22 confessed to ethnic cleansing of any sort, but that it may relate to his

23 state of mind - then I would urge on you that whatever the Trial Court,

24 whatever the Trial Chamber meant, even if they meant "pertinent" to mean

25 "essentiality," that is, does not come close to that level of centrality

Page 10218

1 or essentiality that would make it appropriate to call Mr. Randal.

2 JUDGE SHAHABUDDEEN: Mr. Abrams, may I just out of abundant

3 caution say what Judges normally say, and that is to say that the

4 questions which I ask are not to be understood as expressions of a fixed

5 or predetermined opinion by me. I could well vary tomorrow. Right?

6 May I ask a question of Mr. Robertson now: Mr. Robertson, my mind

7 has been turning to your arguments on availability; that is to say, that

8 the Court should not subpoena a journalist unless it has first taken the

9 trouble to discover whether the evidence in question is available from

10 some other source. Now, would you see any distinction between the

11 principle of availability or unavailability, I think, and the application

12 of that principle? What I mean is would you be prepared to countenance

13 the view that it would be competent for the Trial Chamber to look at the

14 particular situation and to say that having regard to this particular

15 situation, we will not press the application of the principle of

16 unavailability?

17 MR. ROBERTSON: I would concede that the principle be the second

18 condition, if you like; namely, that the evidence should not be available

19 from any other source must be looked at realistically and in the round.

20 And the Court's application of that principle must be common-sensical if I

21 can put it that way.

22 For example, it may be, as here, that the exact same evidence can

23 be obtained from a person -- from another person. It may be that in an

24 eyewitness situation, that there is someone else who is an eyewitness who

25 was not a journalist. That will allow the evidence to be called. It may

Page 10219

1 be that -- the other evidence to be called.

2 It may be, as here, that the evidence of Mr. Brdjanin saying that

3 the non-Serbs should move out -- he says, and this is a quote from -- this

4 is the quote that the Prosecution relies on, that they should not be

5 killed but should be allowed to leave and good riddance.

6 That quotation in 1993 is not identical word for word for all the

7 quotations that they've got. They've got him on tape saying this sort of

8 thing, that there should only be a thousand Muslims or non-Serbs left in

9 the entire territory. They've got him saying that during the conspiracy

10 period. That's not in the same words but it's evidence that is available

11 from another source which goes to the same effect and which cannot be

12 disputed. So I think there is -- and he goes on to say that the state

13 pays too much attention to human rights. Well, that may be honesty rather

14 than malicious intention. But there is obviously a judgement to be made

15 by the Trial Chamber as to whether evidence to the same effect - I don't

16 mean identical evidence and I don't mean that it must be, as in this case,

17 the same words, but evidence to the -- of the same gist or same purport -

18 is available from a non-journalistic source, then the journalist should

19 not be called. That is a condition.

20 We don't know who else was present at this interview. There may

21 have been staffers and secretaries or even cameramen, but that is a matter

22 for the Office of the Prosecutor. I think that your question, I hope I've

23 answered, by saying that there should be clearly latitude and a common

24 sense application and that the -- it may be necessary to write in to the

25 formulation in B, when one gets to it, evidence to the same purport or of

Page 10220

1 the same kind.

2 JUDGE SHAHABUDDEEN: One last question. I think Mr. Robertson,

3 this suggests an answer from you. It has to do with your drying-up

4 argument. Now, I understood you to be conceding that even in cases of

5 confidentiality, the Court could strike a balance and say that the

6 evidence should nevertheless be produced to the Court. Well, what I'm

7 wondering is whether the concession defeats the argument. Do we have here

8 a problem of the particular leading to the general, or shall I say the

9 narrow leading to the universal? If an interviewee knows that even in

10 restricted cases, he could be summoned to testify, is that sufficient to

11 mean that in all cases, he would be reluctant to speak to a journalist?

12 In other words, narrow as the case might be, does it produce a general

13 influence, the effect of which is to dissuade other interviewees from

14 being interviewed at all by a journalist?

15 MR. ROBERTSON: I think there are at two parts to Your Honour's

16 question. To the latter, I can only say this: There is a

17 catch-as-catch-can quality about international criminal justice. Clearly,

18 Brdjanin would not have spoken to any journalist in 1997-98, because by

19 that stage this Court was up and running and he would know or would think

20 that he might well be subject to this Court's jurisdiction. But there are

21 obviously cases where politicians, people who may subsequently be

22 indicted, find it of immediate propaganda value to talk to journalists and

23 may overlook the possibility that they will be indicted. But what we

24 nonetheless say is that if the journalist comes marked, branded, by the

25 Trial Chamber rule as a potential hostile witness, in other words if the

Page 10221

1 journalist is -- can be routinely subpoenaed subsequently to give evidence

2 and has no protective rule, then the prospects of wrongdoers, political or

3 military figures, giving interviews are very much lower. Of course, they

4 may find an immediate propaganda value and give the interview, but cunning

5 and sophisticated potential war criminals are much more wary and much more

6 likely to refuse interviews, more importantly, I think, refuse facilities,

7 refuse journalists visas or travel documents to go to areas where they may

8 observe war crimes. That is what we mean by drying up, the shrinking of

9 opportunities which are in the gift of persons who may subsequently be

10 indicted.

11 I think the first aspect of your question was the -- whether the

12 concession on -- that the confidentiality of source is not as a matter of

13 international law in Goodwin's case absolute, really is a concession that

14 undermines our argument? My first response to that is, well, our argument

15 is that confidentiality is one application of the freedom of expression

16 principle that can be put on one side, because this isn't a case involving

17 confidential sources, but our substantive response is that it doesn't,

18 because the situations in which the Court can breach confidence are

19 essentially those where the rule applies that there is no confidence in

20 iniquity, the old equitable principle, applies to allow confidentiality to

21 be punctured by the Court. Let me give you two examples. Where the

22 journalist is the -- confided in by a mass murderer, say in America, and

23 another person is on trial, has been convicted and is about to be

24 executed, is the journalist bound by that confidentiality? The Court

25 would say, if it was -- if there was a new hearing before the execution,

Page 10222

1 and the journalist was subpoenaed by the Defence to give evidence of --

2 that another person had confessed, the Court would in that situation, that

3 would be a clear case, where there could be no confidence in iniquity

4 where the journalist, because it could save an innocent man from going to

5 the gas chamber or the lethal injection room or whatever is favoured by

6 the state, that would be a clear case where the Court would order the

7 confidentiality to be breached. Or the case happened in England recently

8 where the journalist was made the subject of -- was sent false information

9 by a criminal source with the object that the journalist would publish it

10 and increase the share price of a company so the criminal source could

11 make money out of shares, where the journalist is being used, or there is

12 evidence that the journalist has been used, that's another situation where

13 the Court could on the principle that there is no confidence in iniquity

14 could force the journalist to reveal the confidential source.

15 So I don't think that the concession that I made that there may

16 well be cases in confidentiality where the Court is entitled to order the

17 journalist to reveal the source, I don't think that detracts at all from

18 the argument that in respect of war -- using coercive measures against war

19 correspondents, the Court, before it issues the subpoena, should satisfy

20 itself of the matters that we set out at paragraph 18.

21 JUDGE SHAHABUDDEEN: Gentlemen, your replies have been attractive

22 and helpful, and I thank you both.

23 JUDGE JORDA: [Interpretation] I will have some questions to put at

24 a later stage. I would like the Prosecutor to be able to present her case

25 for the moment because we have listened to the amici curiae for a long

Page 10223

1 time. So I'm now going to turn to the Prosecutor.

2 Mrs. Korner?

3 MS. KORNER: May it please Your Honours, Your Honours, can I come

4 back with some hesitation, in the light of the -- some of the questions

5 that were asked and the importance that has been stressed by two of your

6 number of this appeal to what this appeal is actually all about? And it

7 is this: Whether or not the Trial Chamber, who are the triers of fact and

8 hearing the evidence in this case, have erred in law or in fact in issuing

9 the witness summons against a person who made a witness statement to the

10 Prosecution, agreeing to testify but who has subsequently changed his

11 mind?

12 Your Honours, it seems to me that in the light of some of the

13 hyperbole and misstatements of the background to this case that has been

14 put forward by Mr. Robertson, I ought to go back to how this matter

15 arose. It has been characterised by Mr. Robertson as insouciant. Your

16 Honours, we would say that is very far from the truth of what happened in

17 the Trial Chamber.

18 Now, Your Honours, the matter arose because the Prosecution wished

19 to put into evidence the article that appeared in the Washington Post

20 without the necessity of calling the witness. It is right to point out

21 that a number of other articles relating to interviews with the accused

22 person, Radoslav Brdjanin, have been entered into evidence without

23 objection and without any necessity for the witness being called, and it

24 is perhaps a signal of the importance of the words attributed to

25 Mr. Brdjanin in that article that the Defence made it clear that they

Page 10224

1 wanted the witness who wrote the article to be called. One of the

2 difficulties with the tests that have been put forward on behalf of the

3 appellants and the amicus is that it would require and is requiring both

4 them and the Appeals Chamber to conduct an investigation without being

5 fully aware of the evidence that is led and the full nature of the case

6 against Mr. Brdjanin. The matter arose in this way: That as rightly

7 stated by Mr. Robertson, Mr. Ackerman, counsel for the accused Brdjanin,

8 said that he wished to cross-examine the author of the article on the

9 basis that the quotes attributed were inaccurate.

10 At no stage - and I emphasise this, in the light of the slightly

11 odd correspondence that's been put before Your Honours, and in the light

12 of the fact that Mr. Ackerman declined to appear before Your Honours -

13 whatever he may have said in correspondence with Mr. Robertson's

14 instructing solicitors has never been said to the Court. In other words,

15 as far as the Court is concerned, and indeed we on behalf of the

16 Prosecution are concerned, the position has not changed; Mr. Ackerman

17 wishes to cross-examine the author of the article on the basis of the

18 accuracy of the quotes. If indeed his position has changed, then that

19 makes this appeal even more unnecessary, if I can put it that way, because

20 in that event there could be no objection to the article being entered

21 into evidence if, as he now appears to state, those quotes are indeed not

22 disputed.

23 But Your Honours, those quotes are -- and the Trial Chamber in

24 making its decision - that the words, the alleged declarations of Brdjanin

25 are pertinent to the case of the Prosecution, as explained during oral

Page 10225

1 argument. And Your Honours, in the course of oral argument, it was

2 explained to the Trial Chamber exactly why "pertinent" was the word that

3 they chose to use, was that it was important, relevant, and admissible

4 evidence.

5 Now, Your Honours, can I just before I turn to the actual facts of

6 this case, just to remind Your Honours, deal with two other matters that

7 were raised by Mr. Robertson. The first is this: There is an extract of

8 the pre-trial brief has been produced for Your Honours. Mr. Robertson may

9 be unaware that there is a page limit set on the length of a pre-trial

10 brief. In that particular pre-trial brief, we had to cover the events in

11 some 15 municipalities with which the Court is seized. We gave very

12 little detail as to what witnesses would actually be saying, and indeed

13 the names of witnesses were not given in the pre-trial brief, but this

14 particular witness, Mr. Jonathan Randal, was - it may not be known to

15 Mr. Robertson - actually listed as a witness in the 65 ter summaries that

16 accompanied the pre-trial brief. But Your Honour, it would not be right

17 to say the fact that the actual quote wasn't given in the pre-trial brief

18 is an indication of its importance to the Prosecution.

19 The second matter is this: Mr. Robertson asked, I suppose

20 rhetorically, why it was that the Prosecution had not issued a witness

21 summons for the journalist who was present and interpreting. He says the

22 reasons are unknown. In fact, the reasons are not unknown to

23 Mr. Robertson because provided to him was the discussion that was held in

24 private session. With the leave of the Court, we disclosed all

25 discussions relating to the issue of a witness summons and the events

Page 10226

1 thereafter. And indeed if the arguments which are advanced on behalf of

2 Mr. Randal have any merit in Your Honours' minds, then they would be far

3 greater in relation to the other journalist, Mr. X, who is a journalist,

4 still a practicing journalist, and does, we have reason to believe, as I

5 explained to the Court, good reasons for any fears in testifying. And so

6 contrary to the assertion that has been made that effectively the

7 Prosecution chose in a cavalier manner to issue a witness summons against

8 Mr. Randal, that is not in fact, we would submit, the case. And the

9 Prosecution and the Trial Chamber are very conscious of the need for

10 journalists to be able to carry on their jobs in investigating and

11 attending the scenes where potential war crimes take place. But that does

12 not mean, we would submit, that a journalist is entitled to a privilege -

13 which I want to expand on in a little moment - that is denied to other,

14 and the Court may feel, more deserving organisations who do show complete

15 impartiality and carry out work at perhaps far greater risk to themselves

16 than journalists would like to think.

17 But Your Honours, can I turn, as I said, to really the issue that

18 this appeal is about, which is this: It is not -- or rather, I say it's

19 this -- can I get rid of the negative, first of all. It is not an appeal

20 against an order made by the Trial Chamber that a person testify about or

21 disclose to the Court matters which he received in a confidential

22 capacity.

23 The facts are these: First, the witness spoke through an

24 interpreter to the accused. Second, the accused made statements which are

25 not disputed, are directly relevant to the offences with which he is

Page 10227

1 charged. The conversation or interview was not conducted on any kind of

2 confidential basis. The witness then published an account of his

3 conversation. He was seen by an investigator and agreed to make a

4 statement. He agreed to testify, albeit with reluctance, but agreed that

5 he was prepared to testify that all that was required was for him to

6 confirm the accuracy of those quotes. And he then changed his mind -- or

7 whether his mind was changed by him as a result of the intervention of his

8 then-ex-employers. Your Honour, it is equally not right to state that

9 Mr. Randal was unaware that a witness summons was going to be applied for

10 and served upon him. Your Honour, he was told in no uncertain terms by

11 the investigator. And that was raised at the lower court. There were two

12 conversations with him to attempt to persuade him, to change his mind and

13 testify voluntarily, and he was informed by that investigator that a

14 witness summons would be applied for.

15 Now, Your Honours, as regards the question of evidence in this

16 case, both parties have said that the statements that they have produced

17 in support of their brief are not contested by the Prosecution. Your

18 Honour, that in one sense is incorrect, and I made that clear at the lower

19 court; that we did not accept a great deal of what was said in those

20 statements; that if any weight was to be attached to them, we would wish

21 them to attend for cross-examination. But Your Honours, we have not done

22 so for this reason: It is our submission that the facts of this case do

23 not require that these witnesses attend. But I cannot let pass

24 Mr. Randal's assertion, if it is his assertion, that he had no notice that

25 a witness summons would be applied for.

Page 10228

1 Now, Your Honours, were not Mr. Randal a journalist, on the set of

2 facts that I've just outlined to Your Honours, it is our submission that

3 Your Honours would have had no hesitation in upholding the Trial Chamber's

4 decision to issue a witness summons. There would have been absolutely no

5 reason at all. This appeal would never have been contemplated. But

6 because he is or was at the time a journalist, the Court is now being

7 asked to grant him a privilege against testifying. And effectively in the

8 test which is set out in the appellant's brief at paragraph 18, the onus

9 of satisfying those tests would rest not on the journalist - and as I

10 understand it, this is a special rule of law which is to apply to

11 journalists who are in what is described as war zones - but the onus would

12 be on the person wishing to call him to show why his privilege, his

13 limited privilege maybe, should not apply. And I emphasise the party

14 calling him because it has already been set out or raised what is the case

15 if it is the Defence who wish to call him, as opposed to the Prosecution.

16 Now, Your Honours, our submission would be that such a privilege,

17 such an application of these tests, would be to give journalists a form of

18 privilege granted to no other class of person who happened to be in a

19 position to witness crimes which come before an international tribunal.

20 That would include civilians who happened to be in the area, who are just

21 as reluctant as the journalist to testify but are granted none of these

22 benefits that a journalist, because he is a journalist, is about to be

23 given.

24 Your Honours, if that test is applicable because of the public

25 interest in knowledge of war crimes being disseminated, then why is that

Page 10229

1 privilege as such not to be given to organisations such as Human Rights

2 Watch, who equally send people into areas of danger to gather information

3 which they then publish?

4 What used to be called the European Community Monitoring Mission,

5 now the European Union Monitoring Mission, who had people in the area

6 throughout the conflict, they do not claim for their employees any kind of

7 immunity or special tests to be adopted before the persons there may

8 testify. There has already been an example in the Brdjanin case of one of

9 their employees testifying to the Court about what he saw. ECMM do not

10 take the view that that places their operations in jeopardy, their

11 personnel in jeopardy.

12 A very special case is of course the International Committee of

13 the Red Cross, which has been decided before this Court in the Simic case,

14 but there are very special reasons which are clearly set out in the

15 judgement and which I don't need to go into again, one of which is, of

16 course, that this is an international organisation, recognised under the

17 Geneva Conventions.

18 But Your Honours, as I say, the first question is: What is the

19 rationale behind giving journalists this type of privilege which may

20 hamper the courts in their fact-finding missions?

21 What about other individuals, politicians who go to areas of

22 conflict in order to find out what is happening, in order to publish what

23 is going on? No such privilege has ever been granted or asked for by

24 them.

25 Now, Your Honours, if one looks, then, at the test that is set out

Page 10230

1 as a suggested test for granting that privilege, Your Honours, the

2 problems become even more acute, if I can put it that way. Your Honours,

3 the first is this: That the first test that is set out, is the evidence

4 which a journalist can give of crucial importance to its determination of

5 a defendant's guilt or innocence? How is that determination to be made at

6 the stage of the trial when a journalist is due to testify? Is the Court

7 to examine all the evidence and weigh up the relative importance within

8 that evidence and presumably, if called on behalf of the Prosecution,

9 before they have heard the Defence case? Is the Court at that stage able

10 to make the determination on the basis of evidence it's heard so far, on

11 the basis of what's been said in the pre-trial brief, as to whether that

12 evidence will be crucial or not in the determination of the guilt or

13 innocence of an accused?

14 Second test: Which evidence cannot be obtained by any other means

15 or from any other witness? What is the Court supposed to do in order to

16 satisfy itself of that? If the Prosecution say that evidence cannot be

17 obtained by any other means, is the Court then supposed to go through a

18 list of potential means, do its own investigations, or from any other

19 witness? How is the Court to ascertain whether that is possible? And

20 this is particularly true, as I know that Your Honours are aware, of the

21 trials before this Court, where evidence is continuously coming to light,

22 as it were, in a drip-freed process. From the early days of this Court

23 through until now, the nature of the evidence that's been received by the

24 Court has changed dramatically because of the political circumstances, for

25 example.

Page 10231

1 Your Honours, test number 3, or C: The giving of this evidence by

2 the journalist will not require breach of any obligation of confidence.

3 Well, as Mr. Robertson concedes, it has absolutely no application to the

4 facts of this case, and it's apparent from all the authorities, including

5 Goodwin - and I will return to the case of Goodwin because it's clearly a

6 seminal case on this topic in international human rights - that all

7 authorities have concentrated on this issue of confidentiality, and no

8 court, with the greatest deference to the persuasive and cogent arguments

9 of Mr. Abrams, even in the United States, no court has sought to extend

10 this type of privilege that is asked for beyond the issue of

11 confidentiality.

12 The International Criminal Court statute, when dealing with - and

13 that's enclosed in the Defence brief - the issue of confidentiality, talks

14 about lawyers, doctors and priests -- men of religion, I think it's

15 stated. It doesn't mention journalists. The appellant puts it on the

16 basis, well, it doesn't exclude journalists. No, well, it doesn't exclude

17 an awful lot of other people either, but the fact is that seeing, we would

18 submit, the problems, they have limited that class of person or that class

19 of information which is exempt to the well-known, recognised classes of

20 confidential material.

21 Test number 5: That the giving of this evidence will not put him

22 or his family or sources in any reasonably apprehended personal danger.

23 Well, Your Honours, of course, that is one of the tests that the Court

24 takes into account, not just with journalists but with any witnesses. The

25 Court is well aware, having dealt with witnesses from the former

Page 10232

1 Yugoslavia, of the dangers which are inherent in many of them testifying

2 before this Court. And Your Honours, again, how would it look to those

3 witnesses who do testify, at great and obvious personal risks to

4 themselves sometimes, if journalists were given this exemption from

5 testifying because it puts them in danger, whereas they come up and give

6 evidence without having really the possibility of such an exemption?

7 Your Honour, E: That the decision will not serve as a precedent

8 which would unnecessarily jeopardise the effectiveness or safety of other

9 journalists reporting from that conflict zone in the future. Now, Your

10 Honours, the point about the press is really this: They report within

11 circumstances sometimes of great personal danger. There is no question

12 about that. And we wouldn't seek for one moment to suggest otherwise.

13 But there is no empirical evidence to suggest that the dangers arise from

14 the knowledge that warring parties will have that a journalist may testify

15 against them. We would submit that the dangers arise, firstly, if the

16 warring parties don't want any publication of what is happening in the

17 newspapers. And secondly, once that publication has been made, then those

18 dangers are already there and ready to be seen.

19 Your Honours, the difficulty is this - and this is particularly

20 true of many of the cases that this Court is dealing with - that

21 politicians and leaders want to speak to the press. They want to use the

22 press for their own purposes, to spread, for example, propaganda, and

23 propaganda is a very strong feature of the Prosecution's case against

24 Mr. Brdjanin. The quotes that are attributed to him, which, for example,

25 that no more than 2, 3 per cent of Muslims should be allowed to remain in

Page 10233

1 Banja Luka, are important ones. Mr. Robertson said, "But they have that

2 on tape." Regrettably, we don't have that on tape. We have other quotes

3 on tape. We have other quotes by Mr. Brdjanin in various newspapers, but

4 not that particular one, and that is why, contrary to what Mr. Robertson

5 asserts, anything that is actually in print is of importance in this case,

6 because otherwise, it is dependent very much on witness recollection of

7 some events ten years ago.

8 But Your Honours, for the appellant to suggest that it is the idea

9 that journalists may testify which will put them in danger, we would

10 submit, is unsupported by any evidence to that effect, and indeed, the

11 fact that journalists have testified, apparently without any danger, we

12 would submit, proves to the contrary.

13 Your Honours, the fact is that those tests, we would submit, are

14 unclear in themselves and would lead to difficulties for the Court to

15 enforce it.

16 One of the things about formulating a legal test to be applied is

17 that it must be clear what its parameters are and to whom it applies.

18 Your Honours, for these purposes, what constitutes -- if Your Honours were

19 to formulate a test that would give journalists an unqualified immunity,

20 journalists working in -- I'm sorry, a qualified immunity, journalists

21 working in a war zone, what would define for these purposes a journalist?

22 Would it be someone who was in full-time employment, paid by a newspaper

23 or a magazine? Would it encompass a person contracted to write a series

24 of articles for a publication? Would it cover a person who not

25 contracted, not on the payroll of a newspaper or television station, in

Page 10234

1 fact submitted a series of articles which were then published? What

2 constitutes for these purposes a war zone? Is it a place where war has

3 been declared? Is it a place where there is heavy fighting? If so, what

4 is defined as "heavy fighting"? Does it cover hostage situations? Your

5 Honours, one could go on forever asking effectively what are rhetorical

6 questions, but we submit to Your Honours that you're being asked to

7 formulate a legal test, a legal concept, which has enormous difficulties

8 in its application and we would submit is in fact unnecessary and should

9 not from the point of the public interest of other persons in the same

10 position be granted to this particular class of person.

11 Now, Your Honours, the applicable law as really I think is

12 accepted by all sides is to this effect: There is no direct authority on

13 this type of situation, either in national jurisdictions or in

14 international jurisdictions.

15 The question that Your Honours, or Mr. President posed, the five

16 questions: Does a war correspondent have immunity? We would answer

17 respectfully, no, neither under customary international law or any other

18 system of law.

19 Question two: Is there a public interest? Yes, there is a public

20 interest in journalists being able to cover war areas and bring to the

21 attention of the public the abuses of human rights, the killings, the

22 ethnic cleansing and the like. But Your Honours, it's only one of many

23 competing public interests. There is a public interest in not allowing

24 criminals to make statements to the press in the confident belief that

25 this can never become admissible evidence in a court of law. There is a

Page 10235

1 public interest in seeing wrongdoers punished for their acts and in

2 evidence that is relevant to their wrongdoing being put before the courts

3 that have to make their decision. There is a public interest in, as it

4 were, equitable distribution of the ability to refrain from testifying

5 when required. And Your Honours, when one compares those competing

6 interests, we would submit that journalists are entitled to no special

7 privileges.

8 Your Honour, the further questions you asked really depend on the

9 application. If Your Honours decide that there is to be some kind of

10 immunity, what are the criteria? Your Honours, we would find it extremely

11 difficult to formulate what the criteria should be. For the reasons

12 already given, we would submit that the tests set out there would require

13 the courts to carry out an impossible, lengthy, and really time-consuming

14 exercise. But Your Honours, what we would submit is Your Honours should

15 look at the actual facts of this particular case and appeal. And Your

16 Honours, even under, as we have already submitted, any tests or the tests

17 formulated by the appellants' lawyers and supported by the amicus, under

18 any test Mr. Randal would not fulfil those criteria. It is of, whether

19 crucial or not - and Your Honour, we would certainly quarrel with that

20 test - but it is relevant, important evidence which goes directly to the

21 issue -- one of the issues the Trial Chamber has to decide, which is

22 Mr. Brdjanin's state of mind in relation to one of the offences at the

23 very least with which he is charged, namely deportations and forced

24 transfer, for persecutions generally. And we would invite Your Honours to

25 look at the words attributed to him.

Page 10236

1 Your Honours, can that evidence be obtained by any other means

2 from any other witness? Yes, in theory. It could be obtained from the

3 other journalist who was present. But if Mr. Randal can't testify or

4 shouldn't have to testify, even less should this gentleman. And one of

5 the things is that this gentleman has never made a statement to the

6 Prosecution in which he agreed to testify.

7 C, I do not have to trouble with. D, no evidence at all that

8 giving of evidence would put himself or his family or any sources in any

9 danger and that the decision will not serve as a precedent.

10 Your Honour, may I make this absolutely clear. Nobody is talking

11 here about routinely summoning witness -- journalists to testify. There

12 was lengthy discussion, which has not been put before Your Honours, about

13 this matter. And at one stage indeed the Prosecution made it absolutely

14 clear that they did not wish to put Mr. Randal into the witness box unless

15 absolutely necessary and if the Defence insisted. Now, Your Honour, it is

16 the right of the Defence to have Mr. Randal called if they so require it.

17 I want to make it absolutely clear: The Prosecution are only proposing to

18 call him in order to put into evidence the article that he wrote.

19 [Appeals Chamber and registrar confer]

20 MS. KORNER: And finally, Your Honour, the decision will not --

21 yes, I've dealt with that one.

22 Your Honours, those are the submissions that we would wish to put

23 before Your Honours.

24 Your Honours, I intended to go through Goodwin, but I think it's

25 fairly clear. It's our submission that it doesn't support the

Page 10237

1 interpretation that Mr. Robertson put upon it. Your Honours, what it

2 clearly deals with is again confidentiality, and it doesn't seek, we would

3 submit, to extend that principle any further.

4 Your Honours, as regards the American cases, which with a great

5 deal of trepidation I touch upon because it's not my area of practice.

6 But I'm assisted by Mr. Black on this. Our submissions are clearly set

7 out in the brief, but can I say this: It is our submission that under US

8 law, Branzburg is the controlling case, and that supports the submissions

9 that we make. There is a recent case which is also enclosed in the bundle

10 of authorities of the United States against Smith, which examined, as it

11 were, the parameters of Branzburg.

12 Your Honours, I am, like Mr. Robertson, more familiar with United

13 Kingdom law, and the courts there, even after Goodwin, in which

14 Mr. Robertson acted apparently, have been careful but nonetheless have

15 summonsed journalists to give evidence not only in criminal cases but also

16 in civil cases. And indeed - and I think we enclosed it with our brief -

17 there was a very, very recent case indeed where a journalist was summoned

18 to give evidence or to hand over confidential information and when

19 refusing to do so was threatened with contempt proceedings.

20 So Your Honours, each national jurisdiction has slightly differing

21 applicable rules, but of course Your Honours are not bound by that, save

22 to this extent: We would submit that Your Honours should be cautious

23 before extending a privilege to a class of person which is not available

24 to others who face identical risks and which may have difficulties or

25 which -- in formulating this privilege which may provide for the courts

Page 10238

1 real difficulty in interpretation and for those who would wish to be

2 covered by such a test.

3 Your Honours, those are the submissions that we make.

4 JUDGE JORDA: [Interpretation] Thank you very much, Ms. Korner.

5 We will now hear the responses, and I first turn to the

6 representatives of the amici curiae. Each one will have about ten

7 minutes.

8 Mr. Abrams, would you like to take the floor?

9 MR. ABRAMS: Your Honours, many of the points made by Ms. Korner

10 are ones which have led to considerable thought on the part of those

11 jurists to whom it has fallen to implement the sort of qualified privilege

12 that we have sought here. It is not always easy, but it is possible and

13 it has been done, to define who is a journalist for purposes of making a

14 determination of who receives the benefit, as it were, of such a

15 privilege. Usually the definition has involved people who gather

16 information for dissemination to others. Sometimes it has involved being

17 a regularly paid employee of a newspaper or publication. I don't want to

18 minimise the task of making some of the decisions, but they are all

19 solvable problems and they are all dealt with routinely in any

20 jurisdiction that has adopted a qualified privilege for either

21 confidential sources or non-confidential sources, because the

22 confidential-source privilege, which to be sure arises much more often

23 than the non-confidential-source one, also has generally required an

24 assessment by a court of who is entitled to the privilege, what is the

25 scope of the privilege, what is the application of the privilege to a

Page 10239

1 particular set of facts. And so courts routinely make determinations on

2 essentiality, for example, and they make it early and they give

3 prosecutors a lot of leeway too, and if a prosecutor comes in and says,

4 "This information is essential to my case, and here is why," a court does

5 not conduct a full-fledged factual hearing but does require at least a

6 prima facie showing by the prosecutor that this information is of such

7 centrality to the case as to lead to the conclusion that the test embodied

8 in such a privilege has been met. That is, in short, a solvable problem

9 which is routinely solved in every confidential-source case, as well as

10 non-confidential-source case, in which any such privilege applies.

11 Whatever the language, whether the language is necessity or essentiality

12 or critical need or whatever, a judge is obliged to have a look and make a

13 determination and to make it at an early stage in the proceeding. Else

14 there is no privilege. The opposite side of what Ms. Korner says is that

15 there cannot be a privilege at all, there cannot be any protection at all,

16 unless a court is prepared to sit and listen to the prosecutor or defence

17 counsel make such a proffer.

18 Now, in this case, we have a very odd situation, and I can't help

19 but comment on it, even from my amici curiae status. Counsel said to you

20 at the very beginning of her presentation that if Mr. Ackerman has changed

21 his position, then this appeal is really odd, because the only issue, she

22 said, was truth as to the article. His only issue, not hers, was truth.

23 Well, he has had a chance to appear here today. He has had a chance to

24 file papers with you today. You have before you an unanswered

25 communication from him acknowledging that the article is true. The answer

Page 10240

1 to that, then, is not to say, as counsel has, that therefore the -- this

2 appeal is odd. The answer to it is that this appeal, on that grounds

3 alone, could be sustained. What is the problem here? She wants the

4 evidence in -- she wants the material in evidence. The objection to it

5 was that it might not be true. That objection no longer exists. The

6 material should go in evidence. In any event, there is no need for the

7 journalist, and there is no need for the journalist in particular, if the

8 Court were to decide, as we urge it to, that when the determination is

9 made as to when a journalist may be subpoenaed, there should be some

10 threshold showing made by the party that needs the journalist. The

11 Prosecution doesn't need Mr. Randal. The Prosecution simply wants this

12 piece of paper in evidence. The Prosecution shouldn't even be the problem

13 here, or to put it differently, there shouldn't be a problem here, but if

14 there is, it is, I believe, resolved by the application of either the sort

15 of test that Mr. Robertson and I in somewhat different language have set

16 forth, or indeed perhaps even an easier test than that, but on no account,

17 in this situation, we would urge upon you, should Mr. Randal be obliged to

18 come and testify.

19 A final point. The query was made: What is the rationale for

20 this privilege? Why journalists? Why journalists especially? There are

21 other people out there in the field. There are other people who are in

22 harm's way. The answer is that journalists go into harm's way for the

23 purpose of recounting to the public what they have seen, what they come to

24 learn, what they believe it is useful for the public to know. And

25 journalists, like the Red Cross in this one way, journalists at their best

Page 10241

1 have the three attributes cited by this Court in the Simic case:

2 Neutrality, impartiality and independence. Journalists are not human

3 rights workers. They help with human rights sometimes, but that they do

4 not go to an area to fulfil a human rights function. They go to an area

5 to engage in reportage to the public, and that function, in turn, is

6 often, as everyone has now acknowledged, of enormous help to the cause of

7 human rights and the enforcement of international criminal law against the

8 abuse of human rights.

9 Journalists don't happen to be in an area in which terrible things

10 are happening. They are not the same in that respect as the civilians who

11 are subjected to terrible deprivations and war crimes of the sort that

12 come before this Court. They go there for the very purpose of gathering

13 information to report it to the public. And if we are right in saying

14 that they would be significantly impaired if potential defendants in this

15 Court come to view them as potential witnesses against them, then there

16 would be a significant loss to the public, if that were to happen. It is,

17 I would urge upon this Court, in conclusion, it is a good thing, not a

18 bad, for journalists to interview bad people sometimes, for journalists to

19 interview even the sort of people that wind up here as defendants, even

20 the sort of people that wind up as convicted defendants in this Court.

21 The public is served by having those sorts of interviews published, and

22 that sort of information revealed, not to say all the other information

23 published and the other information revealed that journalists in war zones

24 gather.

25 So we would urge on you to provide a level of legal protection,

Page 10242

1 whatever the language you think is most appropriate, a level of legal

2 protection to permit journalists to continue their pursuit of what I will

3 call a sort of journalistic truth about the events that occur in the field

4 and in the state of mind of people who are prepared to talk to the

5 journalists.

6 One thing I think is plain. They cannot have access to people if

7 the people believe they will testify against them. That cannot be the

8 role of journalists. And there is nothing in that respect special about

9 the facts of this case. There is no proof of centrality at all. I've

10 been sitting here reading the article again to myself, and I urge upon you

11 that you should, in your due consideration of this case, provide the level

12 of legal protection that we have sought here. For my clients, they don't

13 come here so much in support of Mr. Randal, even though they think

14 Mr. Randal should prevail on this, as in support of a principle. The

15 principle is that journalists, including but by no means limited to

16 Mr. Randal, cannot be made to appear in this Court on a showing of this

17 sort.

18 Thank you very much, Your Honour.

19 JUDGE JORDA: [Interpretation] Mr. Robertson? Do you wish to say

20 anything? Mr. Robertson? Briefly, please. You're not going to replead,

21 please. You will just respond to the few points that have been made by

22 the Prosecution. Do you have anything to add in relation to what

23 Ms. Korner has said?

24 MR. ROBERTSON: Finally, the last point that Mr. Abrams made is an

25 important answer. Journalists go into harm's way, often in a country

Page 10243

1 other than their own, to bring out the news, and they go in to harm's way

2 armed with the protection that international law affords them through the

3 jus cogens quality of Article 19 of the universal declaration and its

4 reflection in all other human rights treaties. They are in that respect

5 different to the citizen or the civilian who is caught up in a massacre

6 and can testify against -- about it later. The citizen's task is not to

7 collect information.

8 They are different, very different, to the monitor, the European

9 monitor, and the human rights worker. Ms. Korner asked why should they

10 not have the protection? A very good reason. They actually go there

11 to -- so that their presence will deter war crimes by virtue of the fact

12 that they are there to testify about them later. They make no bones about

13 the fact that that's why they are there, because if any war crimes are

14 committed, they are going to tell -- they are going to be there as

15 witnesses in some court in the future. So of course they don't want or

16 obtain the privilege. They don't, because they go there precisely for

17 that reason.

18 A few other matters that need correction. The Prosecutor said

19 well, the problem is deciding centrality at an early stage. In the Kordic

20 case this Chamber said that questions of admissibility must be decided

21 when the material is proffered, but of course that doesn't prevent the

22 Court revisiting it. It would have been perfectly possible for the Trial

23 Chamber in this case to admit the article and see whether it becomes

24 central or not subsequently and consider or revisit the question of

25 calling Mr. Randal if the veracity of it had been impugned. But there was

Page 10244

1 no -- and I described insouciant the behaviour of the Court in the -- and

2 I don't resile from that at all.

3 And I invite Your Honours simply to look at the transcript for

4 Monday, the 21st of January, 2002, which shows Ms. Korner without any

5 notice to Mr. Randal -- he had no idea that this was coming up, otherwise

6 I would have represented him on the 21st of January. Ms. Korner says,

7 "Well, the witness declines to attend. He's a journalist, and we apply

8 for a witness summons." Mr. Ackerman makes noises about newspaper

9 articles being notoriously unreliable. He wants to cross-examine, but it

10 turns out that he hasn't read it. So the case is put over until the 25th,

11 when he has read it. It's heard on the 25th of January, when he says,

12 "I'm very embarrassed. I haven't read it." And then on Monday, the 28th

13 January Mr. Ackerman says, "The position I'm taking after consultation is

14 the journalist must be brought here because there are some matters that

15 need to be fleshed out with him on cross-examination regarding

16 interpretation primarily." That's -- that's it. The Judge says, "Okay,

17 it will be signed today." End of story. That is such a rudimentary

18 proceeding.

19 There is no examination of why the journalist doesn't want to

20 testify, of the issues that are involved, the public interests involved.

21 Mr. Ackerman has never asked. Under Rule 90 cross-examination has to be

22 relevant and has to be directed to clear matters. Mr. Ackerman has never

23 asked what he wants to put to Mr. Randal or why it's so important. There

24 is no inquiry whatsoever undertaken by the Trial Chamber, and so the

25 problem -- the importance of having a rule means that there will be in

Page 10245

1 future be such inquiries and matters can be clarified.

2 We're left in this -- Your Honours are left in this bizarre

3 position where Mr. Ackerman signs a letter saying, I accept that the

4 quotations are accurate. Ms. Korner today says, well, we don't know about

5 that. As far as we are concerned, these quotes are disputed. Of course

6 if they are disputed and if the matter is going to be decided on that

7 basis, we rely upon the case of Kordic, which is binding on this Chamber,

8 as -- since Mr. Randal can't speak the language, he cannot verify the

9 quotes other than by way of demeanour, as was put to me earlier, or by his

10 knowledge of X's fluency. And we say that that would mean that his

11 evidence cannot have the indicia of reliability that Kordic spoke about as

12 being an indication of its significance. It was not given under oath. It

13 was not subject to cross-examination. And it's made through a translator

14 who has no formal qualifications as a translator. So on any view, even if

15 we assume that the quotes are disputed, the evidence that Mr. Randal can

16 give to stand them up is lacking in the indicia that Kordic looked for as

17 being relevant and admissible evidence. So really again, centrality is

18 not here.

19 The pre-trial brief. We will put in some ten pages of the

20 pre-trial brief which are -- concern quotations from the defendant in

21 relation to Banja Luka. We simply say that there are there ample

22 quotations from him, the gist of which -- and references to witnesses who

23 have notes of them -- the gist of which is similar to the expressions of

24 his opinion in the article, and it is inconceivable in a pre-trial brief

25 of 152 pages that if evidence is said to be essential or central that it

Page 10246

1 wasn't mentioned at all.

2 Mr. Randal, it's true, is 69 and is retired from the Washington

3 Post. Sixty-nine may be an old age for a war correspondent, although it's

4 a young age for a judge. And Mr. Randal has -- is writing a book on

5 terrorism. There's a lot of -- he has a continuing interest in this

6 matter.

7 Finally, the problems that were identified by Ms. Korner turn out

8 to be not -- either not problems at all or problems with which the courts

9 grapple regularly. She said, oh, well, there's no definition of a

10 journalist. There is, of course, a definition of a journalist. You will

11 find it in Attachment 5, the explanation or the accompanying notes to

12 Article 79 of the Geneva Convention I. At paragraph 3260 - this is in

13 Attachment 5 to our brief - it says that journalists in the Geneva

14 Convention should bear the ordinary etymological meaning, although it

15 calls to mind correspondents and writers writing for a daily newspaper.

16 The use of the word in the convention covers the circle of people working

17 for the press and so forth. And so that's -- that's the answer to that

18 point.

19 She says that -- how is the Court to tell whether the gist of the

20 evidence is available. This is quite a familiar issue that courts decide

21 in relation to protected material in the United Kingdom every week. So

22 the problems that she identified are not insoluble problems. They're

23 problems of fact and degree. Very often the solution is to be found --

24 for all the questions that may be asked about the principle, the solution

25 will be found as a matter of common sense on the facts before the Court.

Page 10247

1 And indeed that would be, we submit with respect, the solution in this

2 case when the evidence is looked at is -- is pellucidly simple.

3 Mr. Randal can give no central evidence either for the Prosecution or the

4 Defence. The article is admissible. Whether the -- and the Defence have

5 not indicated pursuant to Rule 90 any issue that is crucial or important

6 to the defendant that they wish to obtain from Mr. Randal other than a

7 fishing expedition into what they describe as background, so that in

8 effect the insignificance of the article for the Court's determination of

9 this defendant's guilt or innocence is plain on an examination, and we

10 would submit that whatever questions may be raised about the -- or

11 hypothetical quibbles with the language that we've suggested in the rule,

12 that the rule will serve in most, if not all, cases to decide whether

13 evidence -- and to some extent, of course, it is the instinct of the Judge

14 developed by --

15 JUDGE JORDA: [Interpretation] Mr. Robertson, I think you have said

16 all that. It's not necessary to repeat it. We have heard that. Your

17 response was supposed to refer to some of the issues raised by Ms. Korner,

18 and I think that you have had the opportunity of doing that.

19 I'll turn to my colleagues to see if they have any questions to

20 ask you.

21 Judge Gunawardana, any questions? No questions. No questions.

22 Very well. Judge Meron.

23 JUDGE MERON: The situation before us now in light of the e-mail

24 which was mentioned is perhaps less than crystal clear. I would be

25 grateful to the Prosecutor, to Ms. Korner, if she would tell us this:

Page 10248

1 Assume that it is confirmed that Mr. Brdjanin does no longer contest the

2 accuracy of the quotations. Would you still need in these circumstances a

3 subpoena?

4 MS. KORNER: Your Honour, I was about to raise this with Your

5 Honours. First, the point that I'm trying to make is although

6 Mr. Ackerman has sent this extraordinary e-mail not to the Court but to

7 the appellant saying he no longer wishes to contest it, that admission has

8 to be made before the Trial Chamber. Then if the Trial Chamber admits the

9 article, we certainly on behalf of the Prosecution don't require

10 Mr. Randal to attend. Mr. Ackerman, however, in order, as I understand

11 it, still to have this article admitted says that we must call -- says the

12 Trial Chamber must order the journalist to appear so he can question him

13 about the context. But at the moment, as I say, all of this is unclear.

14 We do not wish to call Mr. Randal. We took the statement from Mr. Randal

15 to confirm the accuracy of the quotes. If those are no longer disputed,

16 that ends our interest in calling him, provided the article is admitted.

17 JUDGE MERON: Thank you.

18 JUDGE JORDA: [Interpretation] The technical service will help us

19 to have a break because I've been told that there is no more tape. I've

20 been told that there is no more videotape, but we have the transcript

21 nevertheless. I think that everyone has had the opportunity of expressing

22 themselves.

23 I would like to thank my colleagues for all the questions they

24 have asked, and obviously I would like to thank all of you, the amici

25 curiae, the appellants, and the Prosecutor. And you have enabled us to

Page 10249

1 deliberate at the moment.

2 Thank you very much. The hearing is adjourned.

3 --- Whereupon the hearing adjourned at 1.05 p.m.