CASE PROSECUTOR v. RADOSLAV BRDJANIN MOMIR TALIC I) INTRODUCTION
In this case, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) established a qualified testimonial privilege for war correspondents. Indeed, the Appeals Chamber exempts the war correspondents to testify, considering that “war correspondents must be perceived as independentobservers rather than as potential witnesses for the Prosecution”. Jonathan Randal was a war correspondant and spent some time covering the conflict in Yugoslavia as a reporter for the Washington Post. On 11 February, 1993, Randal published an article in the Washington Post in which he quotes Radoslav Brdjanin, a housing administrator, as saying that non-Serbs should be “moved out” to create an “ethnicalclean space through voluntary movement”. Brdjanin also claims that “Serb authorities paid too much attention to human rights in an effort to please European governments”. During the interview, he also explains that he was preparing laws to expel non-Serbs from government housing to make room for Serbs. Brdjanin was convicted in 1999 for genocide, war crimes, crimes against humanity and gravebreaches of the Geneva Convention of 1949. The prosecutor sought to have Randal’s article admitted into evidence, claiming it was relevant to establishing that the Accused possessed the intent required for several of the crimes charged. The defense objected on several grounds, including that the statements attributed to Brdjanin were not accurately reported as Randal conducted the interview trough theuse of an interpreter that may have misrepresented what he said. The prosecutor therefore obtained a subponea to compel Randal to testify. Randal refused to testify and to comply with the subponea, arguing that the Tribunal should recognise a qualified testimonial privilege for journalists. The Trial Chamber refused to recognise it when no issue of protecting confidential sources was
2involved. The Appeals Chamber reverses this decision in this case and establishes a qualified testimonial privilege that restricts the ability of the Tribunal to subponea war correspondents.
THE ARGUMENTS OF THE PARTIES
A. The Appelant’s arguments Randal argued that the ICTY should recognize a qualified (rather than absolute) privilege for war reporters to not testify about theirnewsgathering in order to safeguard their ability to investigate and report effectively from conflict zones. If war correspondents were routinely made to testify, potential sources may perceive them as investigators for the judicial system and therefore, they may be denied access to important information and sources. Moreover, the personal safety of war correspondents and of their sources may be put atrisk and jeopardized if they become identified as potential witnesses in future trials. The result, in the Appellant’s view, will be less journalistic exposure of international crimes and less war correspondents’ effectiveness. Randal therefore urged Appeals Chamber to adopt a five-part test for determining under what circumstances testimony ought to be compelled from a journalist: (1) is thetestimony of “crucial importance” to determining a defendant’s guilt or innocence; (2) cannot be obtained “by any other means or from any other witness”; (3) will not require the journalist to apprehended personal danger; and (5) will not serve as a precedent that will “unnecessarily jeopardise the effectiveness or safety of other journalists reporting from that conflict zone in the future.” In hisview, only this five-part test will allow war correspondents to stay safe and effective. According to him, it is not sufficient only to find, as the Trial Chamber did, that the evidence is “pertinent” to the case.
B. The Prosecution’s arguments The Prosecution submits that the Trial Chamber: (i) correctly declined the Appellant’s invitation to create a precise journalistic privilege; and...