Article by Peter Maass

Journalists and Justice at The Hague

The New York Times  |  July 5, 2002

The war-crimes tribunal in The Hague is supposed to put the bad guys behind bars. I never thought it would go after an American journalist. But last month the tribunal upheld a subpoena against Jonathan Randal, requiring him to testify about events he covered in Bosnia for The Washington Post. If the tribunal has any sense, it will rescind the subpoena and the threat of penalties that it implies.

Mr. Randal had spoken with Hague prosecutors and provided a written statement before they issued the subpoena. Such cooperation from reporters is unlikely to last if the tribunal turns to issuing unwarranted threats. When the tribunal contacted me to testify in another case, in 1997, I agreed to give evidence. This week a representative of the tribunal asked me to testify in an upcoming case, but I am hesitant to do so, mainly because of Mr. Randal’s experience.

The Randal subpoena is the latest example of journalists’ being drawn into legal efforts to punish war criminals as the Balkan and Rwanda tribunals quicken their pace. On Monday the statute establishing the International Criminal Court, which may also draw journalists into its proceedings, entered into force.

The attempts to offer justice to victims of genocide are one of the bright spots of our age. Most journalists — who are the people most likely to witness war crimes, other than the perpetrators and their victims — support war crimes investigations. I don’t believe journalists should be exempt from subpoenas. But in most cases the decision to testify should be the journalist’s, with exceptions made only in very rare circumstances that fall within published guidelines. Even The Washington Post’s lawyers, in trying to quash the Randal subpoena, acknowledged that in particular situations subpoenas might be warranted: for example, if a journalist’s testimony is absolutely vital and cooperation would not imperil him or his family and colleagues. The Post lawyers argued, unsuccessfully, that under those criteria the Randal subpoena should be withdrawn. Their request for an appeal hearing has been granted.

In 1997, prosecutors contacted me because five years earlier, as a reporter for The Washington Post, I had met with Milan Kovacevic, a warlord in Prijedor, a Serb-held town in Bosnia. Mr. Kovacevic had reluctantly agreed to let me and several other journalists visit the prison camps he presided over at Omarska and Trnopolje.

Mr. Kovacevic became the first war-crimes suspect arrested by Western peacekeepers in Bosnia and dispatched to the Hague. The prosecuting team said my testimony would be vital to showing his command over the camps. Because he had not killed or tortured with his own hands, demonstrating his overall command was the only way to convict him of crimes against humanity.

The tribunal’s request confronted me with an increasingly common set of quandaries. The main problem is that testifying at a war crimes tribunal could imperil a journalist’s safety or make it difficult to uncover future misdeeds. This is not a hypothetical debate. A friend of mine who reported extensively on the Balkan wars and continues to produce award-winning investigative stories from the region has been asked to testify in an ongoing case. If he testifies, he is likely to be in physical jeopardy on his next reporting trip to Serbia or Montenegro; alternatively, he will have to choose never to return there. Local journalists would have still fewer choices, since leaving is not always an option.

“On the one hand it’s our job to go to dangerous places to get the truth out,” my friend told me the other day. “We meet with unsavory characters, gain their trust and risk our lives to expose these things. So we’re sympathetic to anyone who’s trying to get at the truth and punish the guilty parties. On the other hand, the minute we are forced to submit to the court in a genocide prosecution, our independence and survival, professional or otherwise, could be at stake.”

Under what circumstances might a subpoena be warranted? Here’s a personal example: the journalists I was with in Prijedor included an American network television crew that filmed part of the meeting with Mr. Kovacevic. I was told by the prosecutors that the network did not wish to share its raw footage. Let’s suppose the tape was decisive evidence of genocide. If sharing it would not put anyone’s neck on the line, and if the network refused to cooperate, a subpoena might be acceptable.

In my case, if I had testified against Mr. Kovacevic, I would have been ill-advised to return to Prijedor and perhaps anywhere in Serb-held parts of Bosnia. But I could live with those restrictions; only a small portion of my current professional life is spent in the former Yugoslavia, and if it were reduced further, I wouldn’t suffer or mind that much.

I was not swayed by the argument, made by maximalists in the press-freedom camp, that any cooperation would degrade my profession’s independence and make it harder for journalists to gain access to war zones. In truth, warlords already regard foreign journalists as agents of their governments. The prospect of a war-crimes indictment several years down the road is very low on the list of concerns for such people.

In the end, I agreed to testify. Three weeks into the trial, and before I was scheduled to enter the witness box, Mr. Kovacevic died of a massive heart attack. Now I am faced with a second request, in a new case, but this time from a tribunal that has shown its willingness to intimidate a journalist into testifying. I hope that the appellate panel will decide that issuing the subpoena to Mr. Randal was an error. In the meantime, I’ll keep my distance.