THE DIVIDE between the European and American views on this question runs deep. The rift is based in part on differing norms of journalistic accountability. Many European nations have "media tribunals," such as the UK’s Press Complaints Commission (PCC), which entertain complaints about unethical journalistic practices brought by the public. In the case of the PCC, publications are required to print the full adjudication of the complaint if the journalist is found to have violated the organization’s Code of Practice. But in the US, except in the course of work by media critics and discovery and trial in libel cases, journalists rarely encounter such intrusion into and assessment of their practices.

The amicus brief filed in Randal’s appeal argues strongly for a US approach to the problem — including a recommendation that the ICTY and other courts adopt something close to the stringent guidelines laid out by the US Department of Justice for issuing any subpoenas to journalists. These guidelines mandate not only that a journalist’s testimony be essential and exclusive to a case, but also require prosecutors to make strenuous efforts to find the information elsewhere and to negotiate with the media outlet involved. As a final check, such subpoenas also require the signature of the US attorney general.

But arguing strongly from American precedents may not be a winning strategy when the US government is otherwise trying to smother the new International Criminal Court (ICC) in its crib. After all, both the Bush administration and the US Congress have actively sought to undermine the ICC — a permanent court established in The Hague this past July, in contrast to ad hoc tribunals such as the ICTY, which was set up specifically to address matters relating to Yugoslavia — with new laws and policy initiatives aimed at exempting US citizens from its jurisdiction. A law passed by the US Congress and signed by President Bush in August actually authorizes military action against the Netherlands if a US citizen is placed in the ICC dock.

"It’s a problem, no doubt," says Abrams. "I wish I could have submitted the attorney general’s guidelines from Corsica or Tasmania. But this is something that I thought would have some persuasive impact. The American approach is designed to cushion the conflict between the judiciary and the press."

US journalists who must negotiate the new atmosphere of distrust created by the first subpoena ever issued by the court to a US journalist believe that such a cushion is needed — as much for the ICTY and other international tribunals’ sakes as for their own.

One of the most fascinating documents in the amicus brief is a deposition submitted to the ICTY by Boston Globe foreign correspondent Elizabeth Neuffer, author of The Key to My Neighbor’s House: Seeking Justice in Bosnia and Rwanda (Picador, 2001). In her statement, Neuffer sketched out the cozy and informal relationship between journalists and war-crimes investigators that she witnessed when she covered the war in Bosnia for the Globe in the 1990s.

"On several occasions," said Neuffer in her deposition, "when I had general information that was of no particular use to my stories but related to war-crimes cases, I passed it along to staff from The Hague." One such instance, she notes, involved evidence that helped uncover the massacres that occurred after the UN "safe area" Srebrenica fell to Bosnian Serb forces in 1995.

Neuffer also carefully laid out the ways in which journalists cannot cooperate with investigators — particularly when confidentiality of sources is at stake: "If the Tribunal were to establish a legal precedent that journalists could be compelled to testify before a war-crimes court — about either confidential or non-confidential sources — I sincerely believe much of the reporting I did and continue to do on war crimes would not have been possible."

Neuffer’s deposition stuck primarily to the impact of the Randal case on her ability to do her job in a conflict zone. But lurking in her words about informal cooperation and help for ICTY investigators from journalists is an implicit warning that such unilateral cooperation may end if clearer guidelines — which are closer to US standards — are not adopted by international courts.

Boston Globe foreign editor James Smith says that the milieu described by Neuffer in her deposition "was some years ago, in a different context from the present situation" facing journalists in the wake of the Randal ruling. Smith points to the predicament of journalists covering the allegations (later found to be erroneous) of massacres of Palestinian civilians by Israeli troops in the Jenin refugee camp this past spring as just the sort of situation in which the Randal subpoena would give Globe reporters and editors pause. At the time that UN inspectors were unsuccessfully seeking access to the site, Smith says: "We were out there [in Jenin] testing the implications of a massacre." By the logic of the Randal ruling, this is precisely the sort of situation in which a journalist who gained the access denied to investigators could be subpoenaed.

For his own part, says Smith, "I’m of the view that one should maintain an arm’s-length distance from investigators from one side or another." He adds that the Globe has no formal policy — pro or con — as yet on journalists’ cooperating with investigators.

The Post’s Steve Coll says that the Randal case has also started a process of reassessment at his newspaper. "I can’t say that we’ve issued new directives," he says. "The assistant managing editor for foreign news may have started discussions about this. On the other hand, everyone on our staff is aware of the Randal case and is cautioned by it. I know if I was out in the field and ran into investigators, in light of this issue I’d be wary, as are a great number of my colleagues."

Asked if he could imagine a situation in which the Post would place a blanket ban on journalists’ interacting with investigators, Coll is blunt: "Yeah, I can. I don’t know that we’d have an absolute policy, but we would spend more time policing the interaction of our reporters with investigators, just as we do with [reporters who work] with the police. A well-educated reporter is aware of the obvious perils of being in possession of materials of possible interest [to law-enforcement officials]. The situation has analogies that are not wildly off base."

Faced with a future of journalists fighting off international-tribunal subpoenas and news organizations blocking their reporters from talking to investigators, a strong case can be made that ICTY and other tribunals should institute clear rules to govern the interaction of international courts with journalists.

The Appeals Chamber of the ICTY will hear Randal’s case on October 4 in The Hague. But ICTY spokesperson Jim Landale says that no one should expect separate guidelines like those of the US Department of Justice to be issued by the court.

"I don’t think there will be any formal guidelines as such, aside from the ruling," says Landale. "I can’t guess or predict. That’s up to the judges."

On reflection, the transatlantic tussle over the testimony of journalists has all the hallmarks of a useless turf war. War-crimes tribunals need the bravery of journalists who uncover crimes. Journalists need a legal framework within which they can do their jobs and serve the public good.

The ICTY could lower the temperature by stepping back from the particular frustrations posed by the Randal case and reassessing the issue of journalists’ roles at the court.

A consensus supporting such a reexamination exists across the Atlantic as well as in the US. "I don’t see what makes state officials and [United Nations Protection Force] commanders so special," says Rowland. "Hey, let’s exempt DJs and beauticians as well. Given the brouhaha, controversy, and strong feelings provoked by the Randal case, and the general issue of journalists testifying, it does look as if the ICTY is going to have to look again at how it deals with journalists as potential witnesses."

Taking the time to offer protections to all journalists — who share risks quite similar to those of the Red Cross and peacekeepers — might also pay dividends for the future of international justice.

Richard Byrne is a freelance writer based in Washington, DC. He can be reached at richardbyrne1@earthlink.net