Case No. IT-99-36-T
IN TRIAL CHAMBER II
Before:
Judge Carmel Agius, Presiding
Judge Ivana Janu
Judge Chikako Taya
Registrar:
Mr. Hans Holthuis
Decision of:
30 June 2003
PROSECUTOR
v.
RADOSLAV BRDJANIN
______________________________
DECISION ON PROSECUTION’S SECOND REQUEST FOR A SUBPOENA OF JONATHAN
RANDAL
______________________________
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
- 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
- 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.
- 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
- 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
- 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
- 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”).
- The Trial Chamber was informed that the Defence would not be responding
to the Motion,20 or to the Response.21
- 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
- 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
- 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
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- The parties advanced arguments on the reliability of Randal’s proposed
testimony on the accuracy of the statements.
- 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
- 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
- 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.
- 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
- 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.
- 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
- 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.
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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
- 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.
- “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.
- 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
- 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
- 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]
SEPARATE OPINION OF JUDGE CHIKAKO TAYA
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.
A. War correspondents’ testimonial privilege on unpublished material
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.
B. Randal’s proposed testimony on the Accused’s demeanour during the
interview
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]
1 - Prosecutor v Radoslav Brdjanin, Case
IT-99-36-T, Prosecution’s Second Request for a Subpoena of Jonathan Randal, 29 Jan 2003.
2 - Jonathan Randal’s Witness Statement to the Prosecution of
17 Aug 2001 at page 2, Annex 1 to the Motion.
3 - Jonathan C. Randal, “Preserving the Fruits of Ethnic Cleansing;
Bosnian Serbs, Expulsion Victims See Campaign as Beyond Reversal”, Washington
Post, 11 Feb 1991, page A34.
4 - Prosecutor v Radoslav Brdjanin, Case IT-99-36-T,
Response to Prosecution’s Second Request for a Subpoena of Jonathan Randal, 14 Mar 2003,
par 19.
5 - Jonathan Randal’s Witness Statement to the Prosecution of
17 Aug 2001 at page 2, Annex 1 to the Motion.
6 - Statement at page 3, Annex 1 to the Motion.
7 - Trial transcript (“T”), 652-653, 21 Jan 2002 and T 927,
28 Jan 2002.
8 - Motion, par 7.
9 - Prosecutor v Radoslav Brdjanin and Momir Talic, Case
IT-99-36-T, Confidential Subpoena to Give Evidence, 29 Jan 2002 (“Subpoena”).
10 - Prosecutor v Radoslav Brdjanin and Momir Talic,
Case IT-99-36-T, Written Submissions on Behalf of Jonathan Randal to Set Aside
Confidential Subpoena to Give Evidence, 8 May 2002.
11 - Prosecutor v Radoslav Brdjanin and Momir Talic,
Case IT-99-36-T, Prosecution’s Response to “Written Submissions on Behalf of Jonathan
Randal to Set Aside Confidential Subpoena to Give Evidence” Dated 29 January 2002,
9 May 2002.
12 - Prosecutor v Radoslav Brdjanin and Momir Talic,
Case IT-99-36-T, Decision on Motion to Set Aside Confidential Subpoena to Give
Evidence, 7 June 2002.
13 - Prosecutor v Radoslav Brdjanin and Momir Talic,
Case IT-99-36-T, Application for Certification from Trial Chamber to Appeal “Decision
on Motion to Set Aside Confidential Subpoena to Give Evidence”, 14 June 2002;
Prosecutor v Radoslav Brdjanin and Momir Talic, Case IT-99-36-T, Decision
to Grant Certification to Appeal the Trial Chamber’s “Decision to Set Aside Confidential
Subpoena to Give Evidence”, 19 June 2002.
14 - Prosecutor v Radoslav Brdjanin and Momir Talic,
Case IT-99-36-AR73.9, Decision on Interlocutory Appeal, 11 Dec 2002; See also
Separate Opinion of Judge Shahabuddeen, 11 Dec 2002. For the relevant procedural
background, see Appeals Chamber Decision, pars 6 and 7.
15 - Appeals Chamber Decision, par 55.
16 - Motion, par 48.
17 - Motion, footnote 43.
18 - Prosecutor v Radoslav Brdjanin, Case IT-99-36-T,
Response to Prosecution’s Second Request for a Subpoena of Jonathan Randal, 14 Mar 2003.
The Trial Chamber had, in private session, granted Randal leave to reply to the
Motion in the space of 14 days: T 14409, 10 Feb 2003 (private session). On 24 February 2003,
Randal filed publicly a response to the Motion. The Trial Chamber instructed the
Registrar to withhold distributing this response pending an explanation from Randal
as to why it had been filed in contravention of the confidential character it
should have been accorded: T 14797-14798, 25 Feb 2002 (private session). The Trial
Chamber took note of Randal’s explanation as to the reasons why he had erroneously
made his filing public.
19 - T 15421, 7 Mar 2002 (closed session).
20 - T 14006, 31 Jan 2003 (private session).
21 - T 15421, 7 Mar 2002 (closed session).
22 - T 17195-17196, 6 June 2003.
23 - Prosecutor v Zlatko Aleksovski, Case IT-95-14/1-A,
Judgement, 24 Mar 2000, par 113.
24 - Appeals Chamber Decision, par 29.
25 - Appeals Chamber Decision, par 50.
26 - Appeals Chamber Decision, par 48.
27 - Although it was impossible to determine with certainty
whether this was the case and to what extent this was so: see Appeals Chamber
Decision, par 44.
28 - Appeals Chamber Decision, pars 42-43.
29 - Appeals Chamber Decision, par 51.
30 - Separate Opinion of Judge Shahabuddeen, pars 31 and 37.
31 - Appeals Chamber Decision, par 54.
32 - Reply, par 16. In its Reply, the Prosecution clarified
that “it has not sought and does not now seek testimony from Randal on any matters
outside the Article and his witness statement”; Ibid, par 18. This clarification
was necessary in view of the following ambiguous statement in the Motion: “[Randal’s]
testimony will not be limited to the Article, but will also address other aspects
of his interview with the Accused, including those addressed in his witness statement”,
Motion, par 45.
33 - Appeals Chamber Decision, par 32.
34 - Appeals Chamber Decision, par 32. See also Separate
Opinion of Judge Shahabuddeen, par 37.
35 - See pars 22-29, below.
36 - See Motion, pars 24-26. See also the discussion
before the Trial Chamber described in the Trial Chamber Decision to Uphold the
Subpoena, pars 4 and 5.
37 - Trial Chamber Decision to Uphold the Subpoena, par 28 A ii.
38 - Appeals Chamber Decision, par 54.
39 - Appeals Chamber Decision, footnote 46.
40 - Motion, pars 29 and 40; Reply, par 5.
41 - Response, par 16.
42 - Motion, par 28; Reply, par 16.
43 - B.A. Garner (ed), Black’s Law Dictionary, 1999, 7th ed,
at page726.
44 - See Prosecutor v Dusko Tadic, Case IT-94-1-T, Decision
on Defence Motion on Hearsay, 5 Aug 1996, par 7: “[u]nder our rules, specifically
Sub-rule 89(C), out-of-court statements that are relevant and found to have probative
value are admissible”. See also Separate Opinion of Judge Stephen on the Defence
Motion on hearsay, 5 Aug 1996.
45 - Separate Opinion of Judge Shahabuddeen, par 28.
46 - Randal bases his submissions on Prosecutor v Dario
Kordic and Mario Cerkez, Case IT 95-14/2-AR73.5, Decision on Appeal Regarding
Statement of a Deceased Witness, 21 July 2000, par 24, where the statement in
issue was found to be so lacking in reliability that it should have been excluded
as without probative value under Rule 89(C).
47 - Response, pars 25 and 26.
48 - Reply, par 5. The Prosecution bases its submissions on
Prosecutor v Zlatko Aleksovski, Case IT-95-14/1-AR73, Decision on Prosecutor’s
Appeal on Admissibility of Evidence, 16 Feb 1999 (“Aleksovski Appeals Chamber
Decision”), par 15.
49 - Randal’s proposed testimony on the context and circumstances
in which the Accused’s admissions were allegedly made is addressed below at pages 12-13.
50 - Judge Shahabuddeen’s Separate Opinion, par 36.
51 - See Appeals Chamber Decision, par 54, quoted at par 19
above.
52 - The Prosecution understood X’s role as an interpreter
providing simultaneous translation; Reply, par 13.
53 - Motion, par 41; Response, par 32; Reply, par 13-14.
54 - See eg Prosecutor v Radoslav Brdjanin and Momir
Talic, Case IT-99-36-T, Prosecution’s Response to “Submissions on Behalf of
Jonathan Randal in Response to Ackerman Memo Filed with Appeals Chamber and Trial
Chamber on 7 October 2002”, 28 Nov 2002, par 3.
55 - Statement at page 2 in Annex 1 to the Motion.
56 - Appeals Chamber Decision, par 36.
57 - Statement at page 2 in Annex 1 to the Motion.
58 - Statement at pages 2 and 3 in Annex 1 to the Motion.
59 - See Separate Opinion of Judge Shahabuddeen, par 19.
60 - Separate Opinion of Judge Shahabuddeen, par 22.
61 - Motion, par 29.
62 - Statement at page 2 in Annex 1 to the Motion.
63 - Motion, par 24.
64 - Motion, par 44.
65 - Reply, par 10.
66 - Response, par 8.
67 - See par 29 above.
68 - Motion, par 29; Statement, at page 2 in Annex 1 to the
Motion.
69 - See Appeals Chamber’s Decision, par 54.
70 - Judge Shahabuddeen’s Separate Opinion, par 37.
71 - Motion, par 29.
72 - Motion, par 44.
73 - I.E, “the prevailing situation at the time the
quotes were made”, Response, par 13.
74 - Response, par 14, citing Separate Opinion of Judge Shahabuddeen,
par 14.
75 - Motion, par 44.
76 - Separate Opinion of Judge Shahabuddeen, par 37.
77 - Separate Opinion of Judge Shahabuddeen, par 33.
78 - Appeals Chamber’s Decision, par 52. Cif Aleksovski
Appeals Chamber Decision, par 15.
79 - Appeals Chamber’s Decision, par 52.
80 - Appeals Chamber’s Decision, par 53.
81 - Reply, footnote 23; Response, pars 45-46.
82 - “I also remember that Brdjanin was quite pleased when
[X] compared him to his counterpart Ariel Sharon, then Israeli Minister of Housing,
but much better known for his controversial involvement in the massacre of hundreds
of Palestinian civilians in Sabra and Shatila in 1982. Brdjanin flashed me what
I took to be a knowing smile when I asked him if he thought what he was doing
was a local equivalent of the “final solution”; Statement at page 2 in Annex 1
to the Motion.
83 - Appeals Chamber Decision, par 40.
84 - Appeals Chamber Decision, par 41.
85 - See also Appeals Chamber Decision, par 50.
86 - See Motion, par 44.
87 - Motion, par 24.
88 - 28 CFR § 50.10 (emphasis added).
89 - Motion, par 24.
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