War correspondents as witnesses in international criminal law

Randal case

Abstract

In a decision from 11 December 2002, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), in the case of Prosecutor v. Brđanin and Talic (IT-96-36), decided not to compel a former war correspondent Jonathan Randal to testify against the accused Radoslav Brđanin, whom he had interviewed in 1993. That was for the first time that an international court has recognized a qualified privilege for war correspondents, thereby extending the traditional categories of privileged persons. The Appeals Chamber holds that in order for a Trial Chamber to issue a subpoena to a war correspondent (to compel a war correspondent to testify) a two-pronged test must be satisfied: first, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case, and second, it must demonstrate that the evidence sought cannot reasonably be obtained elsewhere. This article discusses that decision through critical analysis of the arguments of the parties and the views of the chambers. The author concludes that the establishment of this privilege is justified, bearing in mind the importance of war correspondents (in some situations compelling journalists to testify may hinder the ability of the press to provide accurate and reliable information) and the balance between basic human rights and their limitations (not only the press has the task of imparting information and ideas on matters of public interest, the public also has a right to receive them).