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Published online by Cambridge University Press: 27 February 2017
1 Randal, Jonathan C.. Preserving the Fruits of Ethnic Cleansing; Bosnian Serbs, Expulsion Victims See Campaign as Beyond Reversal, Wash. Post, Feb. 11, 1993, at A34.Google Scholar
2 Id.
3 Prosecutor v. Brdjanin, Case No. IT–99–36–I, Indictment (Mar. 12, 1999); Prosecutor v. Brdjanin, Case No. ICTY–99–36–PT, Fourth Amended Indictment (as corrected, Dec. 10, 1999). The basic legal documents (including the Statute and Rules of Procedure and Evidence), cases (judgments, orders, transcripts, and so on), press releases, and other materials relating to the ICTY are available on its Web site,<http://www.un.org/icty/> .
4 Prosecutor v. Brdjanin, Case No. IT-99-36-T, Decision on Motion to Set Aside Confidential Subpoena to Give Evidence, para. 17 (June 7, 2002)Google Scholar [hereinafter Brdjanin subpoena decision].
5 Id., para. 32.
6 Prosecutor v. Brdjanin, Case No. IT–99–36–AR73.9, Decision on Interlocutory Appeal, para. 29 (Dec. 11, 2002) [hereinafter Brdjanin interlocutory appeal].
7 Id.
8 Id., para. 44.
9 Rule 89(B) provides: “In cases not otherwise provided for in this Section, a Chamber shall apply rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.”
10 Article 21 (4)(e) of the ICTY Statute provides: “In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to the following minimum guarantees, in full equality: . . . (e) to examine, or have examined, the witnesses against him . . . .”
11 As the appeals chamber noted, “given that the Appellant speaks no Serbo–Croatian, and thus that he relied on another journalist for interpretation, the Appeals Chamber finds it difficult to imagine how the Appellant’s testimony could be of direct and important value in determining a core issue in the case.” Brdjanin interlocutory appeal, supra note 6, para. 54.
12 In this context the trial chamber noted that it was “difficult to depart from the reasoning of the majority of the Appeals Chamber without having to anticipate an evaluation of evidence and facts which cannot be done at this particular stage of proceedings.” Prosecutor v. Brdjanin, Case No. IT–99–36–T, Decision on Prosecution’s Second Request for a Subpoena of Jonathan Randal, para. 29 (June 30, 2003).
13 Id., para. 28 (citing Brdjanin interlocutory appeal, supra note 6, para. 36).
14 There is also an important question about whether this kind of prejudgment is both legally appropriate and fair to defendants. Consider, for example, the New York Times’ recent bout with journalistic fraud. See, e.g., Campbell, Duncan, New York Times in Shack as Reporter’s Lies Are Uncovered, Guardian, May 12, 2003 Google Scholar, Foreign Pages, at 16 (noting that the reporter at issue “had often pretended to be in places where he was not and invented information from unnamed sources on major stories, from the Washington sniper case to the Iraq war”) (emphasis added)), available at <http://www.guardian.co.uk/Archive/>.
15 Case No. IT-95-14/1-A, Judgment, para. 113 (March 24, 2000).
16 Brdjanind interlocutory appeal, supra note 6, sep. op. Shahabuddeen, J., para. 15 [hereinafter Shahabuddeen opinion].
17 Brdjanin subpoena decision, supra note 4, para. 29 (describing Randal’s failure to distinguish the case law proffered by him and noting that” [t]o him, die consequences of a subpoena are the same irrespective of whether it is die case of a journalist who wishes to keep confidential his sources and die information he has received in confidence or the case of a journalist who has decided to publish”).
18 Shahabuddeen opinion, supra note 16, para. 16 (observing that, unlike the Tribunal, “a domestic court is aided by the full apparatus of detection and enforcement of die state”).
19 210 F.Supp. 2d 780 (E.D. Va. 2002).
20 The information sought in each case was journalistic work product for use in the potential impeachment of prospective witnesses. United States v. LaRouche Campaign, 841 F.2d 1176 (1st Cir. 1988); United States v. Cuthbertson, 630 F.2d 139 (3rd Cir. 1980).
21 The Court in Larouche Campaign ascribed “very light weight” to the First Amendment concerns advanced with regard to the unpublished material. 841 F.2d at 1183.
22 Id. at 1181.
23 Brdjanin interlocutory appeal, supra note 6, para. 40.
24 Id , para. 41.
25 Id., para. 43 (emphasis added).
26 Id, para. 48.
27 Instead, counsel noted that other jurisdictions have had to make such determinations and that “[u]sually the definition has involved people who gather information for dissemination to others” and that “[s]ometimes it has involved being a regularly paid employee of a newspaper or publication.” Brdjanin interlocutory appeal, supra note 6, Transcript, at 10,238 (Oct. 3, 2002).
28 Id. at 10,246.
29 Brdjanin interlocutory appeal, supra note 6, para. 29.
30 See supra text accompanying note 6.
31 Brdjanin interlocutory appeal, supra note 6, Transcript, at 10,229.
32 In addition, it is also reasonable to anticipate that a whole new class of individuals, who arguably fall within the war correspondent definition and likely were not within the contemplation of the appeals chamber at the time it drafted its decision, will seek to use the test as a shield against compelled testimony. Known occasionally as “web diarists,” “bloggers” use the Internet as a mechanism for conveying countless types of information; members of the “blogging” family run the gamut from “amateur pundits” to freelance journalists. See e.g., Lee, Jennifer S.. Year of the Blog? Web Diarists Are Now Official Members of Convention Press Corps, N.Y. Times, July 26, 2004 Google Scholar, at P7 (noting that press credentials were issued to some thirty–six “bloggers” to cover the 2004 Democratic National Convention and that the organizers of the Republican convention planned to follow suit). The group came of age by providing online commentary on the recent war in Iraq, as private individuals, including soldiers and residents in the area of the conflict, took advantage of “the medium’s lightning speed to cut through the fog of war.” Kurtz, Howard, ‘Webloggers’ Signing On as War Correspondents, Wash. Post, Mar. 23, 2003, at F04.Google Scholar
