Stephens helped Randal persuade the ICTY that he should not have to testify
Since 1999, Red Cross and Red Crescent workers have been protected by a public interest privilege against being subpoenaed to testify in war crimes trials because of the vital nature of their work and the need to remain neutral.
Equally important, although not so obvious perhaps, is the intellectually humanitarian work done by those journalists that cover conflict. As impartial observers and recorders of events, they supply information that informs all the rest of us as citizens of democracies to make decisions about conflict situations.
Richard Goldstone, former judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), said of reporting in conflict areas: "Perhaps the most dramatic example of the impact of that kind of reporting is the establishment of the ICTY. Visual and written reports of the plight of the victims of ethnic cleansing in Bosnia jolted the UN Security Council into taking the unprecedented step of creating a court. There can be no doubt that it was media exposure that triggered the decision."
So when the Appeals Chamber of the ICTY sat last week to deliver a tour de force judgment guaranteeing journalists protection for free speech, sources and the subpoenaing of journalists, it may have been perceived by some as payback time.
In its judgment, the court tracked a test advanced by US journalist Jonathan Randal’s barrister, Geoffrey Robertson QC.
Acknowledging the public interest in the reporting of conflict by journalists, the ICTY laid down a new test for when journalists could be compelled to testify: "A court should only compel a journalist to testify where their evidence cannot be obtained elsewhere AND is so critical that without it an innocent person may otherwise be found guilty, or conversely, a guilty person would walk free."
This decision in no way inhibits journalists from testifying voluntarily should they believe they have a social or moral duty to do so. Martin Bell rightly gave evidence to the ICTY because he had important exculpatory evidence.
But Randal fought the ICTY prosecutor’s subpoena because he thought journalists had a special role that would be threatened if they came to be considered as potential witnesses.
An unprecedented 34 media companies and organisations – including AP, the BBC, CNN, Express Newspapers and Reporters Without Borders – supported him.
A former Washington Post journalist, Randal appealed against the subpoena which would have forced him to give evidence at the trial of Radoslav Brdjanin. A former Serbian minister for housing and resettlement, he is on trial for the persecution and expulsion of more than 100,000 non-Serbs during the Bosnian war.
In the end, not even the prosecutors suggested that Randal’s evidence was of the order of that which the Appeals Chamber recognised as being sufficient grounds for compelling a journalist to testify.
"My concern was dictated by a desire that those who become war correspondents are not fettered by well-meaning, but ill-considered jurisprudence likely to endanger their ability to gather news as well as their lives," said Randal.
"War correspondents should not become auxiliaries of the courts by being compelled to testify. Why? Wars are becoming more, not less, dangerous as the nature of conflict changes from conflicts pitting states against each other to those often involving warring segments of society within nation states.
"Combatants increasingly distrust war correspondents, refuse to talk to them and even kill them because they fear the witness they bear. Forcing war correspondents to testify will increase those dangers and ill serve the public’s right to know."
The last time journalists were similarly considered was in the drawing up of the Geneva Convention, which noted the necessity for "impartiality" and "neutrality" of journalists and even provides for journalists to be accredited to one side or the other.
The ICTY’s clarion call to the judiciary, to "call journalists last", has injected a level of protection and certainty into journalism.
The message may soon find itself being repeated in Lord Saville’s Bloody Sunday Inquiry if that tribunal’s perceived inclination to continue calling journalists is repeated.
Mark Stephens is a lawyer with Finers Stephens Innocent and represented Randal before the ICTY