Elizabeth Neuffer has reported for The Boston Globe for more than 14 years, including reporting on war crimes in Bosnia and Rwanda. She is also the author of “The Key to My Neighbor’s House: Seeking Justice in Bosnia and Rwanda,” published by Picador in 2002, which chronicles the development of the war crimes tribunals and tells the story of several families who sought justice before them. What follows are excerpts from an affidavit she filed in support of the amici curaie brief filed by various news organizations in support of Jonathan Randal’s appeal to set aside the confidential subpoena to give evidence before the tribunal.

“Consequences Occur When Reporters Testify”
– Roy Gutman
My path often crossed in the field with that of the war-crimes investigators and prosecutors, as we were often chasing the same information. On several occasions, when I found I had general information that was of no particular use to my stories but related to war crimes cases, I passed it along to staff from The Hague. For example, investigators on the Srebrenica case will remember that my translator and I led them to the trail of skeletons we discovered on Mt. Kamenica—the bodies of those in the column of men who marched out of Srebrenica.

I think this is an important point to make to underscore the informal cooperation many journalists, including myself, have shown to the tribunal. In these instances, we journalists were neither asked to cooperate, nor were we compelled to do so. Similarly, journalists who reported in 1997 from Rwanda and Zaire found ourselves in possession of information that tribunal investigators could not physically retrieve. Investigators then had not received permission to cross into Zaire, where retreating Hutu Interahamwe had left piles of documents detailing everything from gun smuggling to plans to attack Rwanda in their wake. While I was not one of the journalists who retrieved such evidence, I know those who did and willingly made it available to tribunal investigators anxiously waiting in Rwanda.

Such examples, I believe, show that journalists in good faith try to cooperate with the tribunal when they can. It is the nature of journalism, however, that such cases are often the exception rather than the rule. Reporting on war crimes—particularly breaking news about someone’s involvement in an alleged crime—often requires a degree of confidence placed by sources in the reporter. That confidence often includes a belief that their identities will not be revealed, even to war crimes investigators who pose them no harm.

That was particularly true in Bosnia in 1996, when peace was so fragile and hatreds so deep many feared to tell the truth. There were times I found I could report a story only on the condition that I would not reveal a source’s name and, sometimes, their location to anyone. Such reporting would have been impossible had I then known that someday I might be compelled to testify in front of the tribunal. Had that been the case, I would not have been able to break several stories that, ironically, aided the tribunal in several of its cases. For example, in 1996 I broke a story that outlined the chain of command among the Bosnian Serbs in the Srebrenica massacre, identifying for the first time the links between men on the ground and their commander, Radislav Krstic. A second story, which appeared several days later, outlined how the Bosnian Serbs embarked on a campaign of disturbing mass graves from Srebrenica, so that the evidence would be compromised.

Both stories were later faxed to tribunal investigators at their request. I would never have been able to systematically piece together either story had I not been able, in good faith, to give my word that my sources would be protected and that I would not find myself forced to give evidence about them to the tribunal. The latter is a key point: Many witnesses insisted I not pass on any information to investigators, fearful they would be killed if they were compelled to testify …. If the tribunal were to establish a legal precedent that journalists could be compelled to testify before a war crimes court—about either confidential or nonconfidential sources—I sincerely believe much of the reporting I did and continue to do on war crimes would not have been possible …. Covering stories about wartime situations can be dangerous business. Potential war criminals might see journalists as potential enemies if they knew that journalists could be compelled at some later time to testify against them at the tribunal.

In order to provide journalists with the independence they need to effectively gather the news, journalists who do not wish to or cannot testify should be protected from doing so unless there is a showing that the evidence is absolutely essential to the case and that it cannot be obtained from other sources. Without such a privilege, I fear that both the public and the tribunal will suffer greatly as the number of stories—and the amount of public information—pertaining to war crimes will likely diminish significantly.

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