The decision, announced this morning at the Appeals Chamber in the International War Crimes Tribunal for the Former Yugoslavia in The Hague (ICTY), came in response to the appeal by former Washington Post reporter Jonathan Randal, who had been subpoened to testify in the case of former Bosnian-Serb housing minister Radoslav Brdjanin, who is facing charges of genocide because of his alleged role in the persecution and expulsion of more than 100,000 non-Serbs during the Bosnian war.
The subpoena against Randal was set aside, and he is no longer required to testify.
"This landmark decision in international justice will ensure that war correspondents will not be routinely required to testify before the war crimes tribunal," said CPJ executive director Ann Cooper. "We are relieved that the Randal subpoena has been set aside and hopeful that the ruling will set a precedent providing journalists with important protections under international law."
Randal had quoted Brdjanin in a 1993 article as saying that "those unwilling to defend [Bosnian-Serb territory] must be moved out" to create "an ethnically clean space." After Randal declined to testify voluntarily, the ICTY's Prosecutor's Office requested a subpoena to compel Randal to do so, claiming that the information he could provide was "pertinent" to the prosecution.
Randal challenged the subpoena, but the lower court upheld it on June 7. He then took his case to the Appeals Chamber, which heard oral arguments on October 3. Lawyers for Randal, including noted U.S. First Amendment attorney Floyd Abrams, argued that routinely compelling the press to testify could undermine the ability of journalists to work in war zones. An amicus brief signed by 34 media outlets and press freedom organizations, including CPJ, argued that journalists should only be compelled to testify in circumstances where their testimony is "absolutely essential to the case" and "the information cannot be obtained by other means."
The Appeals Chamber largely agreed, noting that "if war correspondents were to be perceived as potential witnesses for the Prosecution ... war correspondents may shift from being observers of those committing human rights violations to being their targets."
Because of this risk, the Appeals Chamber ruled that journalists should only be compelled to testify when "the evidence sought is of direct and important value in determining a core issue in the case ... and cannot reasonably be obtained elsewhere."
The Appeals Chamber said that the prosecutor could request that the lower court issue a new subpoena for Randal, applying the standard they articulated today.