Photo: ICTY

 

The book The first draft of history: Journalists - witnesses before the Hague Tribunal was born out of the need to understand and convey the experience of journalists who testified before the International Criminal Tribunal for the Former Yugoslavia (ICTY). Below is one of the chapters from the book, written by Nedim Sejdinovic.

 

In his famous and extensive study Ethics in Media Communications: Cases and Controversies, which was translated into Serbian and published by the Belgrade Media Center in 2004, the author Louis Alvin Day vividly clarifies and explains the key ethical questions of contemporary journalism, with an abundance of examples, and tries to provide answers to them. His thought-provoking examples are based on real events and controversies, but they are mostly placed on a hypothetical level, that is, the names of those involved are made up and the circumstances are somewhat or completely changed. Basing the case of a journalist who witnessed the genocide and was asked to testify before the International Criminal Tribunal for the former Yugoslavia in The Hague on an article by S. Austin Merrill, he virtually anticipated the public debate that would be held in some journalistic communities in Western countries several years later. The debate centered on the dilemma of whether journalists should appear as witnesses in trials for the gravest crimes, that is, whether their appearance before the court clashed with the basic principles of journalism ethics (namely impartiality and objectivity) or was a civic duty and a moral obligation.

 

When he receives a summons from the prosecution, the journalist from Day’s example immediately realizes that his convictions as a journalist clash with his civic duty, which dictates that he should help to get to the truth, that is, to adequately punish those guilty of the gravest crimes against humanity, and all the more so because the prosecutor told him that the case was “weak” and that his testimony could greatly help the evidentiary proceedings. His articles and interviews with crime victims had been previously included as evidence in the process and he was supposed to validate them, as well as testify on the circumstances and other information that was not included in his media reports. The journalist consults with the editors, trying to solve a professional and ethical dilemma with their help: whether or not to accept the prosecution’s request. The editor is expressly against it: she believes that the perpetrators of the gravest crimes must be held accountable, but that journalists must not be “agents of the prosecution”, as this discredits their position, which is based on impartiality. In addition, she believes that journalists’ testimonies in court would put their lives in danger, because in future crises and war situations they would be viewed as “intelligence agents”.

 

The journalist agreed in principle with the argumentation, but at the same time considered that there were situations in which journalists were obliged to abandon the position of “neutral observer”, especially when they involved the gravest crimes against humanity, and even more so in a situation where their testimony, due to lack of evidence, would help to properly mete out justice for the guilty. Unlike the editor, the editor-in-chief shared the journalist’s opinion: he pointed out that “under normal circumstances” he would have forbidden his journalist to be a witness for the prosecution, but that this case required deep examination. In the end, he left the decision to the journalist and we do not know until the end of the example whether the journalist appeared in court or not.

 

Louis A. Day does not give a definitive answer to the question of which journalistic position would be ethically correct in this case, but he refers the reader to sections of his book dealing with “ethics and moral reasoning”, inviting them to think for themselves which decision would be valid. He concludes that abandoning the “position of neutrality” is very dangerous for a journalist, but at the same time journalists should not neglect their duties as citizens and become culturally excluded. According to him, if the audience feels that journalists adhere to different norms than ordinary citizens, they risk losing credibility. Although he does not say it explicitly, it seems that the author of the study, by including the broader context as an important element in the “moral reasoning”, is closer to the stand that the journalist should, in the given case, accept the request and testify in the court process. In any case, this example contains practically all the doubts that accompanied the later debate, from the early 2000s, on whether journalists should be witnesses before the International Criminal Court.

 

 

Let us remember that this dilemma was resolved in different ways by journalists and reporters from the United States of America than those from Great Britain and other European countries. American journalists generally refused to testify before The Hague Tribunal, citing objectivity and neutrality, as well as the danger that war reporters would face in crisis areas if the practice of appearing as witnesses in trials for the most serious crimes became established. One of these journalists, in fact the first journalist who refused to testify before the International Criminal Tribunal for the former Yugoslavia, is former Washington Post correspondent Jonathan Randal, who cited the “principled right” of a media representative to not testify in court proceedings.

 

After his refusal to give testimony, at the request of the prosecution the Tribunal issued a subpoena compelling Randal to testify. Randal appealed against the decision to the Tribunal’s Appeals Chamber, which accepted his position, at the same time deciding that his article would be included as evidence in the proceedings.

 

The decision of the Appeals Chamber was certainly influenced by a public appeal by 34 media outlets and journalist and media organizations, primarily American, which publicly warned that the Tribunal should not compel journalists to testify. The signatories of the appeal believed that journalists’ testimonies would make sources of information significantly more closed to journalists in general, especially in war zones, and Randal’s lawyers argued that compelling him to testify would place his job as a war correspondent in jeopardy. In fact, a fierce debate about journalists testifying before the Tribunal had begun earlier that year, 2002, following the testimony of a former BBC Belgrade correspondent, Jacky Rowland, in the trial against the former top man of Serbia and most famous indictee in The Hague, Slobodan Milošević. Her decision to testify was criticized by many journalists, including those from the United States, as well as some of her colleagues from the BBC, who claimed that the testimony compromised the role of journalists as independent observers and endangered their lives in crisis areas.

 

Opponents of journalists testifying in court refer to the right of journalists to protect sources of information, that is, they believe that their sources could be revealed in the court process. In short, opponents of journalists giving testimony cite the following arguments:

 

The last argument is particularly related to the fact that court proceedings take too long and that some journalists were forced to testify in court multiple times, over a long period of time, and in several processes, meeting face to face with the perpetrators of the gravest crimes. At an international conference held in 2018, Ed Vulliamy, the celebrated journalist of The Guardian and a big supporter of journalists testifying before the International Criminal Tribunal, talked about the enormous personal effort, and the mental difficulties he had as a result of numerous testimonies before the Tribunal.

 

“Actually, to be honest, the hardest part was trying to sleep between the days on the stand because you adjourned at the end of the day, you might allow yourself a beer or two or three, but any more than that is a bad idea, because you have to be razor sharp the next day. And, I just remember, I was staying in another hotel later on, the Bel Air, as where they all were just got a bit much, I found a hotel down in the center of The Hague so that I could go to the art gallery and look at Vermeer’s paintings and just kind of remind myself that there was a world out there and there was still some beauty left in it. But I just couldn’t sleep. I’d just stay up all night listening to the trams go by under the window and had to kind of go in with my brain ready for the next day, after maybe two hours of sleep. It became kind of trial by sleeplessness really.

And I think the hardest thing for me was having to relive it all, but then, you know, my experience was nothing really, compared to the real witnesses in this, who were the survivors and the bereaved and the victims and the violated women. They were doing on the stand what no person should ever have to do. So, you know, it was incredibly stressful,” said Vulliamy in his interview with Mediacentar Sarajevo.

 

Another argument against testifying may be the threat to life and being exposed to gruesome threats in the community from which the witnesses come. Two journalists from Belgrade’s Vreme, Dejan Anastasijević and Jovan Dulović, sadly both deceased, suffered numerous threats and insults in Serbia following their testimonies before the International Criminal Tribunal for the former Yugoslavia; indeed Anastasijević and his wife, due to lucky circumstances, survived, though barely, the explosion of a bomb planted in the window of their apartment. Anastasijević later revealed to the public the possible reasons why the explosive device had been planted: allegedly, Vojislav Šešelj, through his wife Jadranka, secretly sent from The Hague to Belgrade a list of witnesses against him, which included Dejan’s name. At the same time, to his great surprise, he learned that the prosecution in The Hague had planned to call him as a witness against the former heads of the Serbian State Security Service, Jovica Stanišić and Franko Simatović, and that it had informed Stanišić’s defense about this a few days before the bomb explosion, but failed to inform him about it. After giving several testimonies, Dulović refused to testify in the proceeding against Vojislav Šešelj, due to illness, old age and fatigue, as well as strong pressure. In a statement given to ICTY officials in 2004, he said that a serious political and media campaign was being waged against him and Anastasijević that threatened their security, led by today’s president of Serbia - then a high-ranking official of the Serbian Radical Party of Vojislav Šešelj - Aleksandar Vučić. Appearing before The Hague Tribunal had severe psychological consequences for both of them.

 

In an interview in 2016, Anastasijević said that he was not sure he would testify again at The Hague Tribunal, primarily because of the numerous “controversial” verdicts that the court had passed in the meantime. Nevertheless, two years later, he appeared as a witness for the ICTY prosecution in the retrial of Stanišić and Simatović.

 

 

Both Anastasijević and Dulović, however, emphasized that they viewed their testimonies as a moral obligation, as part of their job, as a kind of thirst to get to the truth. After testifying against Milošević, Anastasijević went as far as to say that it was “perhaps the most important thing I have done in my life”.

 

Although he spoke at the above-mentioned conference in London about the traumatic effects of his testimonies, Ed Vulliamy still believed that journalists’ testimonies were important and necessary. He believes that journalists, despite everything, have an obligation to testify in trials for the gravest crimes, especially if their statements can contribute to uncovering the truth and punishing those guilty. He makes a distinction between objectivity and neutrality: journalists have an obligation to be objective, but as human beings they cannot remain neutral when faced with horrors and wrongdoing. At public events, including the conference in Sarajevo in 2022, journalist Jacky Rowland emphasized that she decided to testify against Milošević because she considered it her moral duty, as well as an “expansion of her role as a journalist”. She felt that there was no possibility of compromising her sources and that all the information she testified about had already been broadcast anyway. Although the testimony itself entailed a certain psychological effort and difficulties, her main problem was that when she took the witness stand, she lost the support of many colleagues from the BBC, who distanced themselves from her.

 

In 2002, while Rowland was being criticized by her colleagues, the renowned, multiple award-winning journalist Janine Di Giovanni, who worked as a reporter in crisis areas for many major media outlets including The Times, The New York Times and The Guardian, and who had a wealth of experience, stood up in her defense. She believed, and still does today, that journalists have an obligation to testify, regardless of the difficult position they are in, and that it is part of their job. Although generally an opponent of journalists testifying in court, American Newsweek journalist Roy Gutman joined the discussion and said that there were certain circumstances in which journalists’ appearances in court would contribute to punishing those guilty, who would be acquitted without their testimony, and other circumstances that would justify their appearance in court.

 

In his article An Obligation to the Truth, Ed Vulliamy advocates that journalists must not follow the guidelines of Cosa Nostra, i.e. take vows of silence, and that they must not be above other people who have information of value for court proceedings against tyrants and mass murderers. Even then, in 2002, he underlined the difference between the objectivity and neutrality of journalists, pointing out that there were moments in history when neutrality was not neutral but represented complicity to a crime. He contested the argument that testifying in court could put journalists in danger, reminding us that war reporters were at risk anyway if they did their job professionally. He recalled that tens of journalists had been killed during the war in Bosnia and Herzegovina. So, if journalists are already making public facts that are not favourable to individual participants in war conflicts and thus putting themselves in danger, then there are no valid reasons for them not to speak about this information in court and take part in justice being served.

 

The opinion of Ross Howard from the Canadian Institute for Media, Policy and Civil Society is also interesting. He says that neutrality and objectivity hardly go hand in hand with reporting from areas where war crimes and genocide are taking place. According to him, it is impossible to be “clinically neutral” and personally detached in these situations, as if we were reporting from a football match. According to him, neutrality in such situations is a myth.

 

Considering that at least 35 journalists testified before the court in The Hague, it is clear that they resolved their professional and ethical dilemmas by choosing to testify and help establish the truth. Their media items and testimonies were a tremendous contribution to the trials and it is difficult to predict how many of the processes would have ended if the journalists had refused to participate in them. Although many media materials were important as evidence, one should bear in mind that they were not unquestionably admitted in court and that the journalists’ testimonies were aimed at clarifying the circumstances under which the items were made and to what extent they were authentic, that is, to what extent they gave complete and accurate information about specific events. When we talk about the contribution of journalists to war crimes trials, we should also not forget the fact that it was the media items from the war in the former Yugoslavia that contributed to the creation of The Hague Tribunal.

 

As part of the Journalism as the First Draft of History project, Mediacentar Sarajevo interviewed 14 journalists who testified in the trials before The Hague Tribunal. One of them, BBC journalist Martin Bell, said that he gladly accepted the requests to testify, considering that he was first of all a citizen, and only then a journalist, and that giving testimony was his moral and legal obligation. He did not regret testifying and he says that he learned a lot from his experience before the Tribunal.

 

One of the interviewees is Mostar-based journalist Alija Lizde, who was arrested, interrogated, insulted, detained in camps and beaten during the war. He spoke before the Tribunal about what he had learned as a journalist and about his personal experiences. For him, the testimony also had a cathartic character, because he had the opportunity to present his story to the public and the court and help justice be served.

 

 

Although codes of ethics for journalists do not give a precise answer to the question of whether journalists should or should not testify in courts in general, including the International Criminal Court, it is clear that these documents - every single one of them - define journalism as a profession of public interest. Journalists have an obligation to be servants of the public interest. Following this logic, we may say that establishing the truth about the most serious crimes could be considered a public interest par excellence and in this regard journalists would have a professional duty to share their findings in court processes, that is, they should not hide behind any other right. The moral obligation is all the greater if their testimonies are indispensable in order to bring the culprits to justice.

 

As for objectivity and neutrality, during the testimony the journalist can remain objective and neutral, if they communicate facts and authentic knowledge. In addition, ethical principles do not specify that a journalist should be neutral in all circumstances and situations. On the contrary, it is their duty to oppose discriminatory narratives, hate speech, calls to violence, violence and crimes. Of course, in many cases of reporting from crisis areas it is impossible and dangerous to confront these occurrences directly, but it is important to present them in a negative light. Following this logic, according to this ethical guideline the journalist would have the obligation to not be neutral in cases of human rights violations, especially if the cases are drastic, that is, not to invoke neutrality if they have received a court summons to testify.

 

It is true that journalists, if they testify in court trials for the gravest crimes, may be considered “foreign agents” in certain crisis areas. However, the media reality tells us that they are perceived as such regardless of whether or not they give testimony in court. It is certain, however, that journalists must behave in court as in their work: statements must be accurate, complete, objective and responsible. Statements must not endanger the lives and safety of others, including those who were or still are journalists’ sources.

 

Finally, it should be said that it is not the job of journalists to be on the witness stand and that the courts should not call them unless it is absolutely necessary. Professional journalism, in itself, helps to get to the truth, including the truth about human rights violations and crimes in war zones. It can contribute to the truth and the sanctioning of crimes in this way more than by testifying in court.

 

The fact is that technological development, which has made it possible for every citizen to become both a reporter and a journalist to a certain extent, to be able to produce and present media items, will in the future lift part of the burden of responsibility from professional journalists in the context of court proceedings for the most atrocious crimes. But certainly not completely.