Comment: Passing Judgement On The Media

The registrar had concluding that the accused were no longer "indigent" since an organisation named 'Hrvatski Uznik u Haagu' (Croatian Prisoners in The Hague) raised 4.3 million German Marks on their behalf. The Registrar accordingly withdrew defence counsels assigned to seven Bosnian Croats: Mario Cerkez, Mirjan, Zoran and Vlatko Kupreskic, Drago Josipovic, Dragan Papic and Vladimir Santic.

All seven accused appealed to the President of the Tribunal, Judge Gabrielle Kirk McDonald, claiming that the money never reached them or their defendants, and asked the decision on the withdrawal to be re-examined. President McDonald referred the matter to the appropriate Trial Chambers.

In reaching their decisions, the Chambers stated that in the circumstances the burden of proof in determining whether or not the accused were indigent lay with the Registrar. Having considered the evidence before the Registrar, the Trial Chambers found that the evidence was not sufficient.

"Media reports may serve as a first step to launch an investigation into the veracity of the reported facts," concluded the Chambers. "That newspapers and other kinds of media are very often a highly unreliable source of information is common knowledge. Their reports, unsubstantiated by other material, cannot by themselves be sufficient evidence for a court of law".

The Trial Chambers ordered that the assignment of Defence counsel "continue without interruption with regard to all accused".

One sentence in the explanation of this decision of the two Trial Chambers merits particular attention: "That newspapers and other kinds of media are very often a highly unreliable source of information is common knowledge". It gives the impression - to use the Tribunal's language - of a "random and undiscriminated" attack on an entire profession. The judges do not point out the unreliability of "some newspapers" or "certain media" - but journalists as a whole. They say that journalists cannot be trusted, not sometimes, but "very often".

Everyone, including a judge, has the right to be sceptical towards what they read, hear or see in the media, especially when the media is covering their activities. But this kind of catch-all scepticism towards the entire profession, however, does not suit everyone, and the Tribunal's judges least of all, for two principal reasons.

Firstly, had there been no media, the Tribunal would probably never have been founded. In October 1992 - as the first step in the creation of the Tribunal - the Security Council requested the UN Secretary General to form a Commission of experts with the task to "examine and analyse" the reports of grave violations of the humanitarian law in former Yugoslavia.

Whose reports? Primarily the media's, since the journalists were the first in the field in Bosnia, long before the peacekeeping forces, humanitarian organisations and diplomats - not to mention the investigators and the judges. In the summer of 1992, the media were the first to discover the horrors of Omarska and Keraterm, to broadcast the shelling of Sarajevo live as well as the sniper campaign against the civilians in that town and the first to find mass graves. On these matters, despite their assumed inherent "unreliability," many well-known journalists have already testified before the Tribunal - although at the prosecutors' request, not the judges.

The judges' views also put them in dubious company. Radovan Karadzic has also argued that it is "common knowledge that the media were an unreliable source of information," while trying to cast doubt on their accounts of the events at Omarska, Keraterm, Manjaca and elsewhere.

The second reason is that judges in general, and those at the International Criminal Tribunal in particular, should not draw conclusions based on alleged "common knowledge."

This was the precise point made by outgoing chief prosecutor Louise Arbour, when interviewed for the IWPR newsletter Tribunal (Tribunal issue 7, February/March 1997) when asked why she did not indict people whom "everybody knows" participated in war crimes.

"Our worst enemy is the alleged 'common knowledge'," she said. "I am told constantly: 'Why haven't you indicted X or Y? Everybody knows that he is guilty!' Well, that transformation of public perception into an indictable case, on the standards that we are satisfied with...is a considerable transition to be made."

It seems that the Tribunal's judges have set themselves lower standards.