Case No. IT-99-36-T

Before:
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya

Registrar:
Mr. Hans Holthuis

Decision of:
30 June 2003

The Office of the Prosecutor:

Ms. Joanna Korner
Mr. Andrew Cayley

Counsel for the Accused:

Mr. John Ackerman
Mr. David Cunningham

Counsel for Jonathan Randal:

Mr. Geoffrey Robertson
Mr. Steven Powles

 

TRIAL CHAMBER II (“Trial Chamber”) of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (“Tribunal”) is seised of the “Prosecution’s Second Request for a Subpoena of Jonathan Randal ” and Annexes 1 and 2 thereto (“Motion”),¹ filed confidentially by the Office of the Prosecutor (“Prosecution”) on 29 January  2003.

I. INTRODUCTION
1. Jonathan Randal (“Randal”) served as a correspondent for the Washington Post during part of the conflict in the former Yugoslavia.² On 11 February 1993, the Washington Post carried a story by Randal (“Article ”) containing statements attributed to Radoslav Brdjanin (“Accused”) about the plight of the non-Serb population in Banja Luka and the surrounding areas.³ Randal, who does not speak Serbo-Croatian,⁴ carried out the interview with the Accused with the assistance of another journalist , who does speak Serbo-Croatian,⁵ and who will be referred to as “X”. On 17 August 2001, Randal gave a statement to the Prosecution (“Statement”) in which he expressed that, as a journalist, he hesitated to testify before the Tribunal but would ultimately be willing to testify that the quotes accredited to the Accused were “true and accurate”.⁶

2. The Prosecution sought to have the Article admitted into evidence. Defence counsel for the Accused (“Defence”) objected and stated that, if it were admitted into evidence, they would seek to examine Randal.⁷ Consequently, the Prosecution asked Randal to testify voluntarily.⁸ When he refused, it requested that the Trial Chamber issue a subpoena to testify to Randal, which the Trial Chamber did on 29 January 2002.⁹ On 26 and 28 February 2002, 1 and 18 March 2002, the Subpoena was further discussed during hearings before the Trial Chamber.

3. On 9 May 2002, Randal filed a motion contesting the Subpoena, inter alia , on the ground that as a journalist he enjoyed a public interest privilege against being compelled to testify.¹⁰ The Prosecution filed a response.¹¹ After having heard the parties, the Trial Chamber rendered a decision wherein it dismissed Randal’s application to set aside the Subpoena, refusing to recognise a testimonial privilege for journalists when no issue of protecting confidential sources was involved (“Trial Chamber Decision to Uphold the Subpoena”).¹² As a result, Randal sought and obtained certification for leave to appeal.¹³

4. On 11 December 2002, the Appeals Chamber rendered its “Decision on Interlocutory Appeal” (“Appeals Chamber Decision”),¹⁴ wherein it found that the Trial Chamber had failed to apply the correct legal test for compelling the testimony of war correspondents and therefore allowed Randal’s appeal against the Trial Chamber Decision to Uphold the Subpoena. The Appeals Chamber set aside the Subpoena, with the proviso that, should either party to the present case still want Randal to be compelled to testify, it would have to submit a new application before the Trial Chamber to be considered in the light of the principles set out in the Appeals Chamber Decision.¹⁵

5. On 29 January 2003, the Prosecution filed the Motion, in which it requests a subpoena compelling Randal to appear for oral testimony before the Trial Chamber.¹⁶

6. The Prosecution argued that Randal had no right to be heard at this stage of proceedings, but agreed to have the Motion communicated to him.¹⁷ On 14 March 2003, Randal filed confidentially his “Response to Prosecution’s Second Request for a Subpoena of Jonathan Randal” (“Response”).¹⁸ The Prosecution was given leave to reply;¹⁹ it confidentially filed the “Prosecution’s Reply to Randal’s Response to Prosecution’s Second Request for a Subpoena of Jonathan Randal” on 17 March 2003 (“Reply”).

7. The Trial Chamber was informed that the Defence would not be responding to the Motion,²⁰ or to the Response.²¹

8. The Trial Chamber rendered its oral decision dismissing the Motion in the course of the hearing of 6 June 2003 and indicated that a reasoned written decision would follow.²²
   II. SUBMISSIONS BY THE PARTIES AND DISCUSSION

9. The Trial Chamber proposes to address the arguments by the parties in the course of the discussion, the starting point of which is the Appeals Chamber Decision. Decisions by the Appeals Chamber bind this Trial Chamber.²³
   A. The Appeals Chamber Decision

10. The Appeals Chamber found that the Trial Chamber had not applied the correct legal standard when it issued the Subpoena to Randal. The Appeals Chamber addressed the factors that need to be considered prior to compelling war correspondents to testify before the Tribunal. It defined “war correspondents” as “individuals who, for any period of time, report (or investigate for the purposes of reporting) from a conflict zone on issues relating to the conflict”.²⁴ The Appeals Chamber held that a two-pronged test needs to be satisfied in order for a Trial Chamber to issue a subpoena to a war correspondent who, having been requested to testify, refuses to so. “First, the petitioning party must demonstrate that the evidence sought is of direct and important value in determining a core issue in the case. Second, [the petitioning party] must demonstrate that the evidence sought cannot reasonably be obtained elsewhere”.²⁵

11. According to the Appeals Chamber, the rationale behind this standard is to ensure that all evidence that is “really significant to a case” is available to the Trial Chamber, and to prevent war correspondents from being subpoenaed unnecessarily.²⁶ The Appeals Chamber found that compelling war correspondents to testify before the Tribunal on a routine basis may have a significant impact on their ability to obtain information.²⁷ In its view, “the perception that war correspondents can be forced to become witnesses against their interviewees”, which is what really matters, 1) may result in war correspondents facing difficulties in gathering significant information and 2) may put their lives at risk.²⁸

12. Although the Appeals Chamber recognised that it was for the Trial Chamber to apply the principles laid down in the Appeals Chamber Decision to the case before it,²⁹ it nevertheless made some observations pertaining to the present case that are addressed below.

13. Judge Shahabuddeen appended a Separate Opinion where he agreed with the majority decision to set aside the Subpoena, but solely due to Randal’s evidence failing the second prong of the test. Save for the fact that, in Judge Shahabuddeen’s view, an alternative source of the evidence was reasonably available, namely X, Judge Shahabuddeen agreed with the Trial Chamber that the proposed evidence, assuming it was relevant, was compellable.³⁰
    B. Discussion

14. The Prosecution is seeking a subpoena compelling Randal to appear for oral testimony before the Trial Chamber. The question before the Trial Chamber is whether the evidence that the Prosecution seeks from Randal satisfies the standard established by the Appeals Chamber in order to issue a subpoena to him. In this respect the Appeals Chamber noted that, whatever the position of the Trial Chamber with respect to the evidentiary value of the Article, it is the Trial Chamber’s task to determine whether Randal’s testimony itself would satisfy the test coined by the Appeals Chamber.³¹

15. Since the Prosecution is the petitioning party, it bears the burden of demonstrating that the evidence it seeks satisfies the relevant requirements. The parts of Randal’s testimony which the Prosecution seeks are circumscribed to “the statements made by the Accused to Randal and Randal’s additional evidence regarding the Accused’s demeanour and the context and circumstances in which the statements were made” ( hereinafter “Randal’s proposed testimony”).³²

16. The Appeals Chamber noted that, “(i)n determining whether to issue a subpoena , a Trial Chamber has first to take into account the admissibility and potential value of the evidence sought to be obtained”, in accordance with Rule 89(C) and (D) of the Rules of Procedure and Evidence (“Rules”).³³ Only after this inquiry is satisfied do testimonial privileges, such as the qualified privilege enjoyed by war correspondents, apply.³⁴ For the reasons developed below, the Trial Chamber finds that Randal’s proposed testimony is relevant and has, on the face of it, probative value, in keeping with Rule 89(C).³⁵

17. Further, it is not disputed that Randal is a war correspondent within the terms of the definition established by the Appeals Chamber. As such, he is entitled to the qualified testimonial privilege envisaged in the Appeals Chamber Decision. The question therefore is whether Randal’s proposed testimony is of direct and important value in determining a core issue in the case and, if so, whether it can reasonably be obtained elsewhere. The Trial Chamber finds that Randal’s proposed testimony goes to a core issue of the case, because, if accepted as true, the statements attributed to the Accused in his Article go to the Accused’s criminal responsibility, particularly to his intent.³⁶ In addressing whether it is of direct and important value in determining the said core issue, it is useful at this stage to break down the content of Randal’s proposed testimony.
    1. Testimony on the accuracy of the statements attributed to the Accused in the Article

18. The statements attributed to the Accused in the Article have already been reproduced in full in the Trial Chamber Decision to Uphold the Subpoena.³⁷

19. The Appeals Chamber established that resolving whether Randal’s proposed testimony is of direct and important value in determining a core issue requires a factual determination properly left to the Trial Chamber. The majority nevertheless ventured the observation that, with regard in particular to confirming the accuracy of the statements attributed to the Accused in the Article, “given that [Randal] speaks no Serbo-Croatian, and thus that he relied on another journalist for interpretation, the Appeals Chamber finds it difficult to imagine how [Randal] testimony could be of direct and important value to determining a core issue in the case”.³⁸ The Appeals Chamber made this observation “while recognising that the Appellant’s inexplicably inconsistent claims concerning his ability to vouch for the accuracy of the quoted statements in the Article left the Trial Chamber in an unenviable position”.³⁹

20. The Prosecution sought to argue initially that 1) Randal’s testimony on this issue constitutes direct evidence under the terms of the Appeals Chamber Decision because it reflects the Accused’s own statements and conduct, and 2) the Appeals Chamber’s concern referred to above is unfounded, since X’s language skills have not been called into question, and, as seen from his Statement, Randal could vouch for them.⁴⁰

21. Similarly to the Appeals Chamber, it is Randal’s main submission that Randal would be unable to confirm the accuracy of the statements attributed to the Accused in the Article. Randal argues that he could do no more than testify to X’s ability as a speaker of Serbo-Croatian and to his integrity as a journalist, evidence which could reasonably be obtained elsewhere.⁴¹

22. There was some contention as to whether Randal’s proposed testimony on this point constitutes hearsay evidence: the Prosecution however did not press the claim that it was not.⁴² Hearsay evidence has been defined as “testimony that is given by a witness who relates not what he or she knows personally, but what others have said, and that is therefore dependent on the credibility of someone other than the witness”.⁴³ It is the settled caselaw of this Tribunal that hearsay evidence is admissible before it.⁴⁴ Indeed, a sizeable amount of the evidence that war correspondents in general could provide would, for obvious reasons, constitute hearsay evidence. These two factors militate in favour of the understanding that, despite the observation by the Appeals Chamber set out earlier , the inclusion of the word “direct” would not a priori appear to rule out the possibility that hearsay evidence may satisfy the Appeals Chamber’s test. On this issue, Judge Shahabuddeen in his Separate Opinion equated “direct” with “to the point”.⁴⁵

23. The parties advanced arguments on the reliability of Randal’s proposed testimony on the accuracy of the statements.

24. Randal argues that 1) his hearsay evidence lacks any of a number of indicia of reliability so that it should be inadmissible under Rule 89(C)⁴⁶ and 2) even if the Trial Chamber decided to give it some weight, it is of such little value as to be of negligible assistance to the Prosecution, so that the Trial Chamber should weigh this consideration against the potential harm to war correspondents’ newsgathering function and physical integrity.⁴⁷

25. The Prosecution addresses the hearsay issue in its Reply, specifying the indicia of reliability of Randal’s proposed testimony on the accuracy of the statements, inter alia, 1) that the statements attributed to the Accused were followed up by questioning from X and Randal, 2) that the statements in issue were made shortly after the events in question, 3) that they are corroborated by other evidence of the Accused’s discriminatory views and 4) that Randal was prepared to stake his reputation on the reliability of X’s translation.⁴⁸ The Prosecution also argues that the evidence that Randal could give on the circumstances in which the interview took place would further enhance the reliability of his evidence on the accuracy of the statements.⁴⁹

26. In his Separate Opinion, Judge Shahabuddeen considered that “if Randal could give no evidence as to the accuracy of the quotes [in the Article], that goes to the relevance of his evidence, not privilege. Evidence which is not relevant is excluded on the ground of irrelevance alone”.⁵⁰ The majority however appeared to regard that whether Randal, not being a speaker of Serbo-Croatian, could in effect give evidence on the accuracy of the quotes was a question that went to the probative value of his proposed testimony, more specifically , to whether Randal’s proposed testimony satisfied the test laid down by the Appeals Chamber.⁵¹ Accordingly, in the Trial Chamber’s view, determining at this stage whether Randal’s proposed testimony is of probative value is relevant not only to its admissibility pursuant to Rule 89 (C), but also to its “direct value” as envisaged in the Appeals Chamber’s test. The threshold is, of course, higher in the latter case.

27. Much of the argument turned on X’s exact role as an interpreter: the Prosecution and Randal each ventured their own understanding,⁵² and argued about who could ultimately provide the best evidence: an interpreter or the person receiving the interpretation.⁵³ In view of the little information it has before it as to the exact nature of X’s interpretation, the Trial Chamber finds speculation of this nature rather futile . What is undoubted is that X, who also wrote an article mentioning the interview with the Accused,⁵⁴ had an active role in the interview by also formulating his own questions.⁵⁵

28. Having said this, the Trial Chamber sees no merit in Randal’s assertion that his proposed testimony on the accuracy of the quotes lacks any indicia of reliability so as to be inadmissible under the terms of Rule 89(C). His position as explained in paragraph 24 above is inconsistent with the rationale behind the qualified privilege recognised by the Appeals Chamber for war correspondents, namely, that they serve a public interest in providing accurate information from a conflict-torn area.⁵⁶ Contrary to Randal’s submission , the indicia of reliability would in fact point to the conclusion that Randal’s proposed testimony on the accuracy of the quotes is sufficiently reliable for the purposes of Rule 89(C). These indicia are the following: 1) Randal is not a lay person randomly asking questions of an individual he just chanced to meet. Randal is a war correspondent seeking out the Accused and conducting an interview with him;⁵⁷ 2) Randal was present and interacting with the Accused and could verify his answers on the spot or pursue a particular line of questioning; 3) Randal subsequently published his interview in a reputable newspaper, thus staking his professional reputation on its accuracy; 4) Randal gave a statement to the Prosecution that “any quotes in [the Article] that are attributed to [the Accused] are his own words (…) the quotes accredited to [the Accused] are true and accurate” and that X “spoke fluent Serbo-Croat”.⁵⁸ In light of this, even if it were found to be hearsay evidence, Randal’s testimony on the statements attributed to the Accused would be, on the face of it, reliable . To say more would, as noted by Judge Shahabuddeen, entail a risk of prejudging the weight of the evidence,⁵⁹ an act which the Trial Chamber cannot at this stage engage itself in. The Trial Chamber agrees with Judge Shahabuddeen that the weight to be given to the evidence, including its actual credibility, may depend on all other evidence in the case already given or still to be given.⁶⁰ It is precisely because of this and the observation of the Appeals Chamber mentioned in paragraph  19 above that the extent to which the exercise that this Trial Chamber is called upon to do is limited considerably.

29. The Trial Chamber does appreciate the Prosecution’s position with respect to the reliability of Randal’s proposed testimony on the accuracy of the statements attributed to the Accused. These indicia of reliability, however, were all known to the Appeals Chamber at the time it observed that, since Randal does not speak Serbo-Croatian, it found it difficult to imagine how his testimony on the accuracy of the quotes could be of direct and important value in determining a core issue in the case. In light of this, and although the Appeals Chamber left the factual determination to the Trial Chamber, the Trial Chamber finds it difficult to depart from the reasoning of the majority of the Appeals Chamber without having to anticipate an evaluation of evidence and facts which cannot be done at this particular stage of proceedings.
    2. Testimony on the Accused’s demeanour during his interview with Randal

30. According to the Prosecution, this section of Randal’s proposed testimony would cover the following:⁶¹ the Accused’s self-assured demeanour and readiness to talk to the interviewers, his pleasure at being compared with Ariel Sharon and his knowing smile when reference was made to the “final solution”.⁶² These aspects of Randal’s proposed testimony were not considered in the Appeals Chamber Decision.

31. The Prosecution submits that this section of Randal’s proposed testimony demonstrates the Accused’s discriminatory intent, and in fact suggests further the intent to commit genocide.⁶³ In addition, according to the Prosecution, Randal’s evidence on the Accused’s demeanour at interview fully satisfies the first limb of the Appeals Chamber’s test because 1) it is not reliant upon X’s language skills⁶⁴ and 2) even if it constitutes evidence of Randal’s opinion, evidence of opinion is not inadmissible.⁶⁵

32. Randal argues that his proposed testimony in this respect merely consists of Randal’s opinion which is actually based on hearsay evidence, i.e., on “the words attributed to the Accused by X”.⁶⁶

33. Demeanour is normally assessed independently of what an accused actually says . It is apparent, however, that Randal’s proposed testimony on two aspects of the Accused’s demeanour, namely his pleasure at being compared with Ariel Sharon and his knowing smile in reaction to the mention of the “final solution”, is highly dependant on Randal’s understanding of what was being said at the time.⁶⁷ As a result, any findings made with respect to the Accused’s demeanour will necessarily depend on Randal’s understanding of the oral exchanges between the Accused and X . Since Randal does not speak Serbo-Croatian, and is therefore not able to reliably testify as to the oral exchange relevant to his observations regarding the Accused’s demeanour, the Trial Chamber finds that, for the reasons advanced earlier, Randal’s proposed testimony in this respect could not be of direct value in determining a core issue in the case. This is in line with the observation of the Appeals Chamber referred to in paragraph 19 above. As to the rest of the evidence sought by the Prosecution under the label of demeanour, the Trial Chamber fails to see how Randal’s proposed testimony on the Accused’s self-assurance and readiness to talk would of itself satisfy the first limb of the Appeals Chamber’s test both as it is not of real importance and also because it is still necessarily tied to the substance of the interview.
    3. Testimony on the context and circumstances in which the Accused’s admissions were allegedly made

34. The Prosecution gives the following as an example of this section of Randal’s proposed testimony, as found in his Statement: “[the Accused] wanted to create an 'ethnically clean space through voluntary movement’. Given the mood of terror and coercion that had obtained in and around Banja Luka for months, 'voluntary movement’ struck me as a sinister use of understatement”.⁶⁸

35. The majority of the Appeals Chamber was silent on this, as a matter that requires a factual determination to be left to the Trial Chamber.⁶⁹ Judge Shahabuddeen addressed the issue in his Separate Opinion, stating that “(s )o far as the contextual aspects of the quotes were concerned, the proposed evidence was not of direct and important value in determining a core issue in the case: the substantial issue raised concerned the accuracy of the quotes”.⁷⁰

36. According to the Prosecution, Randal’s proposed testimony on the context and circumstances in which the Accused’s admissions were allegedly made 1) offers the Trial Chamber a deeper understanding of the statements attributed to the Accused and 2) enhances its ability to determine the probative value to be given to Randal’s proposed testimony.⁷¹ It argues that it is direct evidence since it is not reliant upon X’s language skills.⁷²

37. Randal argues that he should not be compelled to testify solely on questions of context, since it is not apparent that, not being an expert witness, he would be able to answer questions on context and there are “a plethora” of other potential witnesses who could be called “by the Defence” to establish context.⁷³ Randal finds support for his stand in the Separate Opinion of Judge Shahabuddeen .⁷⁴

38. The Trial Chamber fails to see how evidence of context and circumstance could in and of itself amount to evidence of important value in determining a core issue in the case. Such evidence would only assume an important value in determining a core issue in the case if taken in conjunction with the substance of the interview which, for the reasons advanced in paragraphs 28 and 29 above, is not available to the Trial Chamber.
    C. Conclusion

39. The Prosecution argues that it now seeks from Randal more than mere confirmation of the accuracy of the statements attributed to the Accused in the Article; it also seeks evidence of context and demeanour, which, it argues, does not rely at all on X’s interpretation and which satisfies the standard set by the Appeals Chamber .⁷⁵ As noted earlier, however, the evidence of demeanour that the Prosecution seeks would appear highly reliant on what in Randal’s view was being said during the interview. Evidence on the context and circumstances surrounding the interview would not qualify as important to satisfy the test coined by the Appeals Chamber. The Trial Chamber agrees with Judge Shahabuddeen that “the substantial issue raised concerned the accuracy of the quotes”.⁷⁶ The Trial Chamber therefore finds that, if the justification for calling Randal, i.e.: to confirm the accuracy of the statements attributed to the Accused in the Article must fail because, as he spoke no Serbo-Croatian, his evidence on this point would not be of direct and important value in determining a core issue in the case, the additional evidence sought by the Prosecution beyond the accuracy of the quotes must also fail: a) because sections of it would be highly dependant on what in Randal’s view was being said at the time and b) the sections that are not dependant on this would not qualify as important to satisfy the standard established by the Appeals Chamber.

40. “A war correspondent loses the benefit of his qualified privilege only if both prongs of the Appeals Chamber’s test are satisfied by the party asking for the subpoena ”.⁷⁷ The Prosecution has failed to satisfy the first limb of the test. In this respect, therefore, it is unnecessary to resolve whether the evidence sought in Randal’s proposed testimony can be reasonably obtained elsewhere.

41. The question remains, however, whether the Article should be admitted into evidence in the absence of having Randal appear to testify. The Appeals Chamber considered that the inability of either party to challenge the accuracy of the Article by cross-examining its author does not mean that the Article must be excluded, but goes instead to the weight to be ascribed to it.⁷⁸ It noted that the Article’s admissibility depends on its probative value (Rule 89 (C)) and on the balance between that probative value and its potential to undermine the fairness of the trial (Rule 89(D)), and also that “[b]ecause the Article is hearsay, the Trial Chamber will also want to examine what indicia of reliability or unreliability it carries”.⁷⁹ The Appeals Chamber further clarified that, should the Article be admitted into evidence, the author’s unavailability for testimony need not prejudice the Accused since 1) the Defence may still question the Article’s accuracy, and 2) the Trial Chamber would have to take this unavailability into consideration in deciding what weight to ascribe to it.⁸⁰

42. The Trial Chamber finds that, for reasons similar to those stated in paragraph  28 above with respect to he indicia of reliability of Randal’s proposed testimony, the Article is admissible in evidence pursuant to Rule 89(C). Moreover, the Trial Chamber is satisfied that the Article’s probative value is not substantially outweighed by the need to ensure a fair trial, since Randal’s unavailability for testimony, and the Defence challenge to the accuracy of the statements ascribed to the Accused, will, inter alia, be taken into consideration in deciding what weight to ascribe to the Article. The Trial Chamber notes that the weight to be ascribed to the Article will depend to a great extent on evidence proving the level of X’s proficiency in Serbo-Croatian at the time the interview took place.
    D. Confidentiality of filings

43. The Prosecution and Randal request that the confidentiality of the Motion and of the various filings relating to it be lifted in view, inter alia, of the public interest in this issue.⁸¹ The Trial Chamber finds no reason to maintain the confidentiality of these filings , with the exception of the relevant sections which could identify X. The Trial Chamber has reviewed carefully the Response and verified that it contains no information which could identify X, and it will therefore order to lift the confidentiality of this filling. The Prosecution is, on the other hand, invited to file a public version of its confidential fillings, wherein information which could identify X is expunged.
    III. DISPOSITION

    For the foregoing reasons,

    PURSUANT TO Rule 54 of the Rules of Procedure and Evidence

    TRIAL CHAMBER II HEREBY

    i) Dismisses the Motion;

    ii) Admits the Article into evidence, without prejudice to the weight to be ascribed to it by the Trial Chamber in reaching its judgement;

    iii) Invites the Prosecution to file public versions of the following filings:

    1. Motion
    2. Reply; and

    iv) Instructs the Registrar to lift the confidentiality of the Response.

Done in French and English, the English version being authoritative.

____________________________
Carmel Agius
Presiding Judge

Judge Taya appends a separate opinion.
Dated this thirtieth day of June 2003,
At The Hague, The Netherlands

[Seal of the Tribunal]

1. I respectfully agree with the Trial Chamber’s decision to dismiss the Prosecution’s “Second Application for a Subpoena of Jonathan Randal” due to Randal’s proposed testimony failing to satisfy the standard established by the Appeals Chamber for compelling war correspondents to testify before the Tribunal. I also agree to admit Randal’s Article into evidence subject to its weight being evaluated in light of all evidence available at trial. However, I wish to address the standard established in the Appeals Chamber Decision and its application to the present case with respect to Randal’s proposed testimony on the Accused’s demeanour during the interview.

2. The Trial Chamber’s Decision identifies, in paragraph 29, what, according to the Prosecution, is encompassed in the section of Randal’s proposed testimony on the Accused’s demeanour. My reasoning deviates from that of the majority with respect to Randal’s proposed testimony on the Accused’s demeanour during the interview, particularly his alleged pleasure at being compared with Ariel Sharon and on his knowing smile when reference was made to the “final solution”.⁸²

3. The Trial Chamber applied the standard established in the Appeals Chamber Decision to Randal’s proposed testimony on the Accused’s demeanour without any further consideration. However, the Appeals Chamber in its Decision did not address Randal’s proposed testimony on the Accused’s demeanour, or the fact that it does not appear in the Article but is found solely in Randal’s Statement to the Office of the Prosecutor .

4. The Appeals Chamber acknowledged the impossibility of determining with certainty whether and to what extent compelling war correspondents to testify would hamper their newsgathering function. It concluded that the possibility that it may do so could not be discarded lightly simply because the evidence sought from the war correspondent concerned published information and not confidential sources.⁸³ In evaluating the scope of the war correspondent’s testimonial privilege, the Appeals Chamber Decision considered “that the amount of protection that should be given to war correspondents from testifying before the International Tribunal is directly proportional to the harm that it may cause to the newsgathering function”.⁸⁴ Finally, the Appeals Chamber Decision considered that “what really matters is the perception that war-correspondents can be forced to become witnesses against their interviewees”, and concluded that “if war correspondents were to be perceived as potential witnesses for the Prosecution, two consequences may follow. First, they may have difficulties in gathering significant information because the interviewed persons, particularly those committing human rights violations, may talk less freely with them and may deny access to conflict zones. Second, war correspondents may shift from being observers of those committing human rights violations to being their targets, thereby putting their own lives at risk.” Accordingly, the Appeals Chamber enunciated a two-pronged test that must be satisfied for compelling war correspondents to testify before the Tribunal, which is reproduced at paragraph  9 of the majority opinion.⁸⁵

5. When the Appeals Chamber established the standard for compelling war correspondents to testify referred to above, it only took into consideration Randal’s proposed testimony on the accuracy of the statements attributed to the Accused in the Article and his proposed testimony on the context and circumstances in which the Accused’s admission were made. The Appeals Chamber Decision did not specifically address Randal’s proposed testimony on the unpublished information concerning the Accused’s demeanour during the interview because the issue was first raised in the “Second Application for a Subpoena of Jonathan Randal” (“Motion”). In the Motion the Prosecution argues that the admission of only the published Article into evidence would not satisfy its purposes and that Randal needs to be compelled to testify, inter alia, not only on the accuracy of the statements attributed to the Accused in his Article, but on unpublished material regarding the Accused’s demeanour , namely the pleasure of being compared to Ariel Sharon and the knowing smile when reference was made to the “ final solution”. ⁸⁶ This section of testimony may be useful, but is not necessarily needed for the assessment of the accuracy of the statements attributed to the Accused during the interview. The Prosecution puts emphasis on Randal’s proposed testimony on these two aspects of the Accused’s demeanour, now arguing that this section of testimony is evidence of the Accused’s genocial intent.⁸⁷

6. In my view, war-correspondents can be compelled to become witnesses against their interviewees on unpublished matters only in the most limited of circumstances. The public relies on the publications of war correspondents who are perceived as professionals who vouch for the reliability of what they publish and take responsibility for any misinformation. At the same time, it seems to me that there is an expectation that war correspondents will not reveal unpublished material, particularly in the course of criminal proceedings against their interviewees. This is true whether the material is dropped from publication in the course of drafting or editing, and even if the unpublished material does not consist of confidential information or involve confidential sources. Compelling a war correspondent to testify on unpublished matters results in unfair surprise, not only for the interviewee but for the public as well. This risks destroying public confidence in war correspondents.

7. In this sense, averting “the perception that war correspondents can be forced to become witnesses against their interviewees” is but the first layer of concern . The second layer of concern relates to the perception of potential interviewees that war correspondents will stand by their publications but not beyond them, even if the material gathered by war correspondents which has not been the subject of publication does not consist of confidential information or confidential sources .

8. For this second layer of concern it is not sufficient to apply only the standard established by the Appeals Chamber Decision. A stricter standard is required. Testimonial privilege for war correspondents on unpublished matters should be recognised except when this unpublished testimony is crucial to determine guilt or innocence and there is no alternative means to accommodate the public interest in the free flow of information and in having all the evidence before the Tribunal.

9. In this respect it is helpful to refer to the United States’ Department of Justice policy with regard to the issuance of subpoenas to members of the news media, which states that the “use of subpoenas to members of the news media should, except under exigent circumstances, be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information”.⁸⁸ Admittedly circumstances may arise when unpublished information, including information relating to the demeanour of the source, or information relating to the impression the war correspondent drew from the demeanour of the source, is useful to the evaluation of the accuracy of the published information. But even in these cases mere usefulness does not satisfy the criteria of this guideline – urgent circumstances are needed to allow testimony on unpublished information. These internal guidelines reflect the underlying logic that war correspondents should not be compelled to testify beyond their publications except when crucial needs exist to obtain such testimony to establish guilt or innocence so as to safeguard their independence in the eyes of the public, including potential interviewees, in order to avoid encroaching upon their newsgathering function beyond what is strictly necessary for the proper administration of justice.

10. In my view, it is implicit in the Appeals Chamber Decision that the standard established by it is only applicable to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information. A stricter standard is applicable to the testimony of unpublished information.

11. Since there exists no crucial need to obtain testimony regarding the demeanour of the Accused, in particular these two aspects of the Accused’s demeanour as explained in section B below and since it is beyond and outside the published article , Randal may claim the testimonial privilege accorded to war correspondents with respect to his proposed testimony on the Accused’s demeanour during the interview . This notwithstanding, I agree with the majority that Randal’s proposed testimony regarding the demeanour of the Accused cannot be compelled even on a literal application of the Appeals Chamber’s standard because it would not satisfy the first limb of the test.

12. The majority concludes in paragraph 32 that Randal’s proposed testimony on the Accused’s alleged pleasure at being compared with Ariel Sharon and on his knowing smile when reference was made to the “final solution” is highly dependant on Randal’s understanding of what was being said at the time, and that, since Randal does not speak Serbo-Croat, his testimony in this respect would not satisfy the standard established by the Appeals Chamber Decision because it would not be of direct and important value in determining a core issue in the case.

13. Although I am in agreement with the conclusion that Randal’s testimony on these two aspects of the Accused’s demeanour would not satisfy the first limb of the standard established by the Appeals Chamber, in my view the reasoning whereby this conclusion is reached merits a more detailed examination.

14. The Prosecution argues, inter alia, that Randal’s remark in his Statement that the Accused took pleasure in being compared with Ariel Sharon is evidence of the Accused’s genocidal intent.⁸⁹ However, the meaning of this aspect of the Accused’s demeanour is, as the majority noted, reliant in the first place on the exact phrasing of the comparison between the Accused and Ariel Sharon. In addition, Randal’s testimony on the Accused’s pleased appearance, although admissible as evidence of opinion, is based on the presumption that the Accused understood Sharon to be someone involved in the massacre of hundreds of Palestinian civilians in Sabra and Shatila in 1982.

15. Similarly, the Prosecution argues that Randal’s remark in his Statement that the Accused gave him a knowing smile when his actions were compared to the local equivalent of the “final solution” is evidence of, inter alia, the Accused’s genocidal intent. Randal’s observation on the meaning of this smile is, in accordance with what the majority states, even more reliant on Randal’s understanding of what was being said at the time, because it is not apparent how X may have translated the phrase “final solution”.

16. In addition, the Accused’s demeanour may not have been in any way connected to what was being said at the time, but may instead have reflected whatever extraneous thoughts may have been going through his mind at that moment.

17. In light of these considerations, it is necessary to conclude that, differently from Randal’s proposed testimony on the accuracy of the statements attributed to the Accused, these two aspects of Randal’s proposed testimony on the Accused’s demeanour are dependent not only on Randal’s understanding of what was being said at the time , but also on the factors outlined above. It cannot be said that Randal’s observations on the Accused’s pleased countenance and on his knowing smile remain unequivocal. The Accused’s genocidal intent, or even his intent to forcibly remove non-Serbs from the area, are not the necessary implication of the Accused’s demeanour. For all these reasons, Randal’s proposed testimony on these two aspects of the Accused’s demeanour is not of direct and important value to the determination of a core issue in the case.

Done in French and English, the English version being authoritative.

______________
Chikako Taya

Dated this thirtieth day of June 2003,
At The Hague,
The Netherlands

[Seal of the Tribunal]