Evidentiary privilege of journalists reporting in areas of armed conflict-evidence in war crimes trials-rule-making process of ICTY

摘要

In December 2002, the appeals chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), reversing the decision of the trial chamber, established a qualified testimonial privilege for war correspondents. The claim of journalistic privilege arose in the case of Prosecutor v. Brdjanin, in response to a subpoena that trial chamber II issued to a former reporter for the Washington Post, Jonathan C. Randal. In February 1993, the newspaper had published an article written by Randal, in which he attributed a number of statements to Brdjanin, then a Bosnian Serb housing administrator. The quotes come from Randal's interview of the accused, which was conducted with the assistance of an unidentified fellow journalist X who served as translator. In the article, Brdjanin is quoted as saying that he supported the removal of non-Serbs from the region as a means of "crea[ting] an ethnically clean space through voluntary movement" and that "[w]e are going to defend our frontiers at any cost... and wherever our boots stand, that's the situation." The article further notes Brdjanin's intention to draft laws that would force non-Serbs out of government housing. In January 2002, the prosecution in Brdjanin sought to admit Randal's article into evidence as part of its case-in-chief against Brdjanin. It also sought to introduce a statement made by the then retired journalist, in which Randal asserted a willingness to attest to the truth and accuracy of the statements accredited to Brdjanin (although Randal also indicated that he would prefer not to testify). Since Brdjanin stands accused of numerous crimes-including crimes against humanity, such as deportation and forcible transfer-the prosecution maintained that the statements which the article ascribes to the accused "go directly to the heart of its case against [him]." In addition to objecting to the admission of the article and statements, Brdjanin argued that, should they be admitted, he would need the opportunity to cross-examine Randal. In response, the prosecution shifted its position, and requested and received from the trial chamber a subpoena for the journalist.