Current Nieman Fellow Russell Mills, former publisher of the Ottawa Citizen, explored the issues involved in journalists testifying before war crimes tribunals for a course he was taking at the Kennedy School of Government. His research led him to propose another way in which decisions about whether journalists will testify might be reached. His ideas are presented in the following excerpt from the paper he wrote for this class.
In December the United Nations International Criminal Tribunal for the Former Yugoslavia ruled in the Jonathan Randal case that the reporters maynot be routinely subpoenaed to testify in war crimes cases before the court. This was a huge breakthrough in recognizing the vital role that journalists play in reporting on conflicts and the particular dangers they face in war zones. If this is accepted as a precedent by other international courts, much of the agonizing about whether war correspondents should testify against those they have reported on should disappear.
There is no guarantee of this, however, and it is sure to be strongly resisted by defense attorneys. If an international court still decides that it needs the evidence of a journalist in the future, it might be wise to set up a process to involve the international journalistic community at an early stage—before a subpoena has been issued—in a case-by-case review of the need for evidence from a journalist. Currently, there is no journalistic organization with either a sufficiently broad membership or mandate to perform such a task. But such an organization could be created; its title could be the Journalists Committee on International Justice (JCIJ).
The JCIJ could be created by and made accountable to a coalition of international journalistic organizations such as the Committee to Protect Journalists, International Federation of Journalists, Reporters Sans Frontières, and the International Press Institute. This new organization’s role would be to develop and oversee a review process. It would be imperative that this review committee be regarded by journalists as an internal watchdog group whose goal is to protect journalists from unnecessary snooping by international tribunals. Although its legitimacy would not be accepted by journalists who would refuse as a matter of principle to testify under any circumstances, it would gain considerable support from many journalists if it took strong positions against identification of sources and revealing of unpublished material.
There would be some U.S. news organizations that might not support this process on strict First Amendment grounds. However, the U.S. Supreme Court’s many decisions that support press freedom while not granting absolute privilege could be helpful in guiding this committee’s work. And even without full U.S. participation, the committee could put in place a useful process to protect most of the world’s journalists who are from countries that support the International Criminal Court.
The process might work as follows: If an international tribunal decides that the evidence of a journalist is necessary in a particular case, court officials would approach that person and ask for voluntary participation. If the journalist refuses, the matter would be referred to the review committee (rather than a subpoena being issued). The journalist would be free to refuse the services of the committee, but if the journalist wanted the committee to review the request, then committee members would consult with all relevant parties and try to reach a decision.
This decision could be a statement of support for the refusal of the journalist to testify; a suggestion for other ways for the court to get the evidence it needs; a suggestion for a compromise on the scope or nature of the request; or, perhaps in rare cases, support for the position of the court. All of this would be advisory and nonbinding. The court would remain free to reject any compromise and issue a subpoena. The journalist would also be free to reject a compromise and mount a legal challenge.
There are, of course, several possible barriers to establishing such a review committee and process. International courts could refuse to accept it because of possible delays and adverse publicity. Then there is the internecine rivalry of international press freedom organizations that might each want to control it. And there is the anticipated low participation by U.S. news organizations because of strict views of First Amendment rights. To ease some of these concerns, the committee might be established for a trial period of two to three years to test its usefulness and to work out problems. Since requests for evidence from journalists have been relatively rare, the review committee could also be a virtual one that would only come together when required.
For the sake of its legitimacy, the initiative to establish such a process must come from the international journalistic community, not from courts. And, if the relevant press organizations can’t agree on the makeup of a review committee, an organization already exists that could serve as the committee on an interim or even a permanent basis. The UNESCO Advisory Group for Press Freedom was formed in 1995 and now includes 16 distinguished journalists from many parts of the world. Many of them belong to other press freedom organizations. That this advisory group is attached to but not part of an international organization like UNESCO might help to make it more acceptable to the international tribunals.
There are no easy answers to resolving this conflict of rights—the right of reporters to protect their sources (and themselves) and the right of courts to request citizens to present relevant evidence. Resistance to the establishment of such a process might be substantial and, in certain cases, might fail to bridge the gap between journalism and justice. In some cases, however, such a process might provide a useful route to assisting international courts that does not do damage to the continued access and safety of journalists.