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It is a telling moment when one of the most intriguing rulings impacting free speech and free press rights for Americans comes from a court overseas. But that is exactly what happened this year in a case involving Jonathan Randal, a former Washington Post reporter who covered the conflict in the Balkans in the 1990s. In February 1993, Randal published an article in which Radoslav Brdjanin, a Bosnian Serb leader, advocated the expulsion of Croats and Muslims from Bosnia. Brdjanin is now on trial before the United Nations war crimes tribunal in the Hague on charges of genocide and forced deportation of non-Serbs. When Brdjanin challenged the accuracy of Randal’s article, the prosecutor sought Randal’s own testimony to support his reporting. Randal resisted, and the trial court ordered him to testify. He took his case to the tribunal’s appeals court, arguing that journalists should be protected from such compelled testimony in order to safeguard their ability to operate in areas in which war crimes take place. The appeals court agreed. On Dec. 11, it issued a unanimous ruling establishing a qualified reporter’s privilege for its proceedings. Under the test created by the court, a subpoena to a reporter will be upheld only if the testimony sought is of “direct and important value in determining a core issue in [a] case” and if the evidence cannot “reasonably be obtained elsewhere.” “If war correspondents were to be perceived as potential witnesses . . . two consequences may follow,” the five-member panel said. “First, they may have difficulties in gathering significant information because the interviewed persons . . . may talk less freely with them and may deny access to combat zones. Second, war correspondents may shift from being observers of those committing human rights violations to being their targets, thereby putting their own lives at risk.” The privilege created by the court is similar to the protections that shield reporters from subpoenas in U.S. legal proceedings. The significance of the ruling, which marks the first time that a legal protection for journalists has been recognized in a war crimes court, lies not only in the successful export of U.S. free press law, but also in the import for future international tribunals. With plans for the International Criminal Court moving along and the possibility that ad hoc tribunals will be convened to prosecute global terrorists or a deposed Iraqi leadership, Randal’s challenge came at a pivotal time. Wherever the war on terrorism leads, the precedent that Randal established will follow. Bruce D. Brown is an associate in the D.C. office of Baker & Hostetler, specializing in First Amendment litigation.

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