By Gutman, Roy
Nieman Reports , Vol. 57, No. 1
In its decision to quash the bizarre order that former Washington Post reporter Jonathan Randal testify to the veracity of an interview he had done 10 years earlier, The International Criminal Tribunal for the Former Yugoslavia was attempting to curb the powers of the prosecutor in an area in which they were undefined and expanding without check.
Prosecutor Carla Del Ponte chose, however, not to yield, and two months after the appeal's ruling she renewed her demand for Randal's testimony. The Randal case has thus turned into a test, not only of the relationship of journalists to international justice, but also of the functioning of the first U.N. criminal tribunal set up since the Nuremberg trials. Moreover, it has been a wake-up call to our profession, which put aside its usual anarchy and rallied behind the notion that journalists deserve procedural protection before this court.
Now it is time for a more rigorous discussion about journalists and the court, particularly in light of the creation of the U.N.'s permanent International Criminal Court (ICC). It is vital that this permanent court adopt the protections implicit in The Hague court's ruling regarding journalists' testimony and that it recognize the unique role journalists play in exposing war crimes.
The Randal case presented a special challenge to the lawyers for the Post, for they were well aware that in summoning this most accomplished of reporters, the tribunal was following through on Randal's own written agreement to appear. This was, on the surface, a pretty weak case; it is tough arguing your way out of a signed commitment.
In fact, Randal's case was inherently stronger than it appeared, for the underlying question is how did the prosecutor's staff obtain his signature in the first place? Having spoken at length to another reporter who signed a similar statement, I would posit that the prosecutor's office has developed a routine in approaching journalists that leads at the end of an interview to a form of entrapment. I base this on a small sample--of two. But the method in both cases was identical.
And therein lies the story behind the story. This important new United Nations' institution has been purring along with scarcely any oversight from the news media. Until the Post mounted its challenge, the major journalistic organizations had shown minimal interest in whether reporters testify or not. Let us hope the journalistic organizations will remain engaged. At the same time, reporters have to be more aware of what they are dealing with in talking with tribunal prosecutors. Whether the United States continues the Bush administration boycott or eventually agrees to join, the ICC is a reality, and news media should begin focusing on it. And, finally, news organizations should cover these proceedings with more skepticism.
The Prosecutor and the Journalist
This is not a jeremiad against The Hague tribunal, for any reporter who covered the crimes of the four Balkan wars from 1991 to 1999 has to view justice after such suffering as an advance for civilization. Between the closing of the Nuremberg Tribunals and the opening of The Hague, international justice existed largely in theory. The failure to prosecute no doubt was viewed by violators as a green light. Although The Hague tribunal and its Arusha branch for Rwanda were established by Western leaders partly to compensate for their fecklessness in Yugoslavia and Rwanda, these tribunals have taken on a life of their own. Their proceedings have helped not only to bring some justice where there had been genocide, but also to strengthen the law, set precedents and, one hopes, deter future such crimes.
Nevertheless, like any other institution, these courts need watchdogging. And they are not getting it. I reported (in Newsweek) in August 2001 that one of The Hague tribunal's indictments against a Croatian general stated charges that were 180 degrees at variance with what I and even the spokeswoman for the tribunal, Florence Hartmann, had reported (for Le Monde) at the time and knew to be the case. …