LONDON – Can journalists give evidence at international criminal trials without compromising their objectivity? What is the probative value of journalistic evidence? What does it feel like to be cross-examined by Slobodan Milošević?

These were some of the questions discussed at the event Ethics and the Law: Journalists and International Criminal Tribunals hosted on 25 October at London’s Frontline Club. The fourth of a series of events on “Ethics and the News”, the panel discussion was organised by the Ethical Journalism Network and Global Rights Compliance, and chaired by Channel 4 Head of News and Current Affairs Dorothy Byrne.

In part 1 of this post, we described how journalists recounted their experience of testifying at high-profile international criminal trials. At the same event, legal practitioners also gave their thoughts on the role of journalists in such trials.

The lawyers’ view

The next speaker is the Rt Hon. Lord Justice Adrian Fulford, who was elected to serve as a judge before the ICC for a term of 9 years. Tapping into his wealth of experience, Sir Adrian acknowledges the shortcomings of international justice: trials are too lengthy, trials are too costly, not enough cases are brought before the ICC. The current system of international criminal trials, he says, is an intimidating slow-moving machine, something akin to “a Gilbert & Sullivan operetto” taking place in large surroundings, and could benefit from more imaginative ways of giving evidence to make the process less intimidating for witnesses. It is increasingly difficult to get people to testify, Sir Adrien says, but journalists tend to make good witnesses, as the essence of their role is to bear witness to events.

Wayne Jordash QC, of Global Rights Compliance, is more ambivalent: to him, journalistic evidence does not have any heightened probative value. While Jordash emphasizes the role of journalists as watchdogs as crucial (perhaps now more than ever), and agrees that photo and video evidence is critical, he suggests that journalists’ additional testimony does not have a huge bearing on a case. However, journalism is crucial in another, often ignored way: in pushing the information out and catching society’s attention. Through their reporting on human rights violations in the news, war journalists help keep human rights violations in the news cycle – this, Jordash says, helps mount and maintain support, which can in turn lead to better funding to combat such violations.

Last speaker but not least, Wendy Betts is the Director of eyeWitness to Atrocities, an non-governmental organisation focusing on the collection of verifiable footage of human rights violations for use in investigations and trials. With over twenty years’ experience in the documentation of large-scale and war crimes, Betts is familiar with evidential issues in international criminal trials. The eyeWitness smartphone app was created to address some of the issues with using footage as evidence: it stores photos and videos in a virtual evidence locker, which maintains the chain of custody, allows for authentication and means the evidence can be admitted in trials. Based on three pillars (the app, a secure server and its members’ legal work), EyeWitness provides legal and technical expertise in building photo and video dossiers that can be authenticated for use in criminal investigations and trials. This type of vision is one of the “imaginative solutions” of collecting evidence mentioned by Sir Adrian, and was successfully used to secure the conviction of two militiamen in the Democratic Republic of Congo in Autumn 2018.

The variety of positions expressed at the event, and the nuanced ways in which the speakers discussed the topic of journalism and international criminal law, shed light on an area of ethics and the law that is neither black nor white – but which, for many, create sensitive questions about personal responsibility and the duty to testify or, conversely, the duty to abstain testifying.

NOTE: this article was amended on 28 November 2018 to better reflect the organisational structure and mission of EyeWitness to Atrocities.