When Reporters Cross the Line

by Stewart Purvis

  But Hilsum was careful to say that her own involvement was not about Akayesu – no matter what she, as a human being, may have thought about the charges levelled against him. She felt herself able to participate because she had witnessed widespread slaughter. She had no professional views about Akayesu, the prisoner in the dock who sometimes shuffled nervously and betrayed the fact that like many of his victims he too was very scared. She had not witnessed his crimes. She wrote, ‘I do not know if Akayesu is guilty or innocent.’639

  But she was conscious of the need for the historical record to be set straight by the court if any justice was to be done to the victims. And she felt committed enough to want to help. The prosecution needed to establish that ‘the alleged crimes of individuals were “crimes against humanity”, part of a “widespread and systematic” plan to kill civilians for reasons of ethnicity, race, religion or politics’.640 She was adamant that it was: ‘Of that I have no doubt.’ But, she also recognised, without ego, that there were few alternative witnesses available:

  By accident of history, I happened to be there. The only other foreign correspondent in Kigali at the time was unable to leave her house because, as a Belgian, she was under threat. So I … was the only foreign journalist to report those first, critical days in the capital. This gave me responsibilities beyond my job as a reporter which I could not avoid.641

  There had been other outside observers in Kigali – those working for the ICRC, for instance – but they were prevented from giving testimony precisely because they would undermine their employer’s impartiality, which, crucially, it could never risk. So the burden fell on her, a freelance cameraman who had actually recorded some footage of killings642 and a doctor from the charity Médecins Sans Frontières, who argued that his human duty overrode his ‘medical loyalty’ to his employer.

  So Hilsum told the court what she had seen: ‘the hundreds of hacked bodies spilling out of the morgue, the blood running in the hospital gutters, the baby whose leg had been partially severed by a machete, the drunken soldiers and young men on the roadblocks’. 643 But she attempted to ‘distinguish between what I saw and what I later learnt’. She confessed that in ‘those first, terrifying, days I failed to realise how well organised’ the campaign was. ‘I saw the horror without understanding the meaning.’ Only later did she realise that the massacre had been well organised, and not some chaotic event: weapons had been distributed, training given, instructions delivered over RTLMC by the station’s broadcasters. Over the months following the massacre she interviewed ‘survivors and some of the killers’ leaders’ and came to appreciate that ‘far from being “ancient tribal hatred”’, it had been ‘a well-planned campaign to try and exterminate Rwanda’s Tutsis and eliminate anyone who opposed the murderous plan’.644 Comparisons with the Nazis were not lost on her.

  But for Hilsum, the bottom line was simply that it was ‘the right thing to do. The normal rules of journalistic ethics are overwhelmed by murder on this scale,’ she wrote.645 She saw herself crossing that line, but felt that ‘it was a moral duty to use my unique position to influence the historical record in the court’.

  Two-pronged test

  Several years after she had appeared in Arusha, a war crimes case came before the Rwanda court’s sister tribunal, ICTY. It involved Jonathan Randal, an American journalist who had reported about the civil war in the former Yugoslavia for the Washington Post. He had been subpoenaed to give evidence in a trial of a suspected war criminal. Randal refused, citing some of the reasons that have already been outlined. He received backing from his newspaper and many journalists and fought the order. It went to appeal and, in the view of the court, which supported his application, ‘a two-pronged test needs to be satisfied in order for a Trial Chamber to issue a subpoena to a war correspondent who, having been requested to testify, refuses to do so’. First, the legal team summoning the journalist should be able to show that ‘the evidence sought is of direct and important value in determining a core issue in the case’. So, it needs to be a key fact, or event, not some by-the-way factoid, not, to use a judicial term, obiter dicta. But more importantly, the legal team would have to ‘demonstrate that the evidence sought cannot reasonably be obtained elsewhere’. In other words, journalists should not be used just because they were there, or as lazy evidence-gathering. Their potential contribution had to have an element of uniqueness about it, something that could not be gleaned from any other source, not matter how hard they tried. Just as Lindsey Hilsum’s testimony could not really be provided by anyone else. So the summoning of journalists to testify as a matter of routine was not acceptable to the court.

  The judges had also recognised the dangers for the journalists stemming from overuse. ‘Compelling war correspondents to testify before the tribunal on a routine basis may have a significant impact on their ability to obtain information,’ they had felt. The Appeal Court recognised the potent dangers of ‘the perception that war correspondents can be forced to become witnesses against their interviewees’. That could – and maybe would in some cases – ‘result in war correspondents facing difficulties in gathering significant information’, but it could also put their lives at risk.646 The journalist Nina Bernstein recalled that John Kifner, a veteran New York Times war correspondent, had told her that if she co-operated with prosecutors ‘I would put him at greater risk of being shot the next time he approached some warlord with his press tags dangling, saying, “I just want to tell your story.”’647 It is a powerful injunction.

  Roy Gutman, the journalist who first revealed the existence of detention camps in Bosnia to the world, refused to attend the Yugoslav tribunal, after an informal approach. He was not insensitive to the request. ‘Make no mistake,’ he wrote, ‘many reporters, myself included, feel a moral obligation to assist the tribunal, as reporters frequently do with local district attorneys and prosecutors in domestic settings.’ But the issue was really whether journalists should testify about articles written years earlier. ‘My own standard’, Gutman wrote, ‘is that if my testimony would make the difference between conviction and release of a person I know was a killer or the planner of killings, I would testify out of conscience.’ Anything else

  seems to me I am either there to self-advertise my role in nailing the culprit, being used as window dressing for a weak case, or being made vulnerable to a perfectly legal demand for discovery by the defense and, where that ends, heaven only knows. I would not, as Vulliamy did, make my notes available to the court.648

  American journalist Bill Berkeley went to Rwanda as the massacres were coming to an end. He heard the stories from both victims, many of whom bore terrible wounds, and perpetrators. His reports appeared in the New Republic. He has written how, five years later, he was asked to appear as a prosecution witness at ICTR in the trial of Colonel Théoniste Bagosora, whom many called the Rwandan Himmler. He agreed. But as the years passed in case preparations, and he wrote several editorials for the New York Times that were critical of ICTR, he began to have doubts; but so too, it seems, had the prosecution. In the end Berkeley says that for reasons not entirely clear he was never called, but by then he had decided that he would have refused to appear in any case. Stressing that he was only invited, never subpoenaed, he wrote about it saying that not only would it have compromised his impartiality, but his safety.

  I believe that the perception of journalists as potential arms of a criminal prosecution should be avoided at all costs, not least for the safety of future war correspondents and for their ability to do work that ultimately is as essential to the pursuit of truth as any criminal proceeding is likely to be.649

  But, to be clear, he does accept one of the appeal judges’ prongs, and thus supports Lindsey Hilsum’s position: ‘I believe there might be extraordinary circumstances in which a journalist could well be persuaded to testify if he or she has unique and invaluable evidence that can be gotten nowhere else. But that should be the exceptional case, and the decision should be the journalist’
s own.’650 He wrote, ‘Journalism, my life’s work, is an expression of my humanity and the best contribution I have to make to justice as well as truth.’

  But Gutman adds another point when he says that his evidence was published for all to see and there is nothing more that he can contribute. It was a view shared by his editors. ‘My worry in this context is that you can give the appearance of being tainted by taking a stand,’ he said. Crossing the line and testifying may make it difficult for journalists to sustain the appearance of objectivity in their further coverage. In his view the job of a reporter is simply to report the facts, nothing more, and nothing less. But that is a powerful role. He said, ‘At times journalism can have the same impact as a tribunal and a lot faster. A timely, well-documented, irrefutable exposé can pack such a wallop that the mere shining of additional multiple spotlights on a scene can change the behaviour of the culprit.’651

  Testifying might affect a person’s objectivity. It was a reason cited when CNN’s Catherine Bond, who had reported on Rwanda for Channel 4 News, refused to testify at the tribunal after CNN’s editors pointed out that it would affect her impartiality. But it had less resonance with Ed Vulliamy or his employers: he covered the trial process in which he also appeared as a prosecution witness, both before and after he took the stand.

  Roy Gutman does not see what extra value a journalist can add by standing up in court. Hilsum quotes him: ‘My editors would say, if all (the court) wants is a recapitulation of what’s been written or filmed, then just submit that. They don’t need you in person. What do you actually add to the proceedings?’652 It is a good point. But some would argue, as we saw in the previous chapter about Bosnia, that personal testimony is valuable. A court can probe and satisfy itself as to the witness’s candour. But there are times when, for instance, a testimony can make all the difference, as Dr Merdžanić’s testimony in the Living Marxism trial showed.

  But there is perhaps another reason why many – maybe the majority – of American journalists are uneasy about the prospect of testifying before a war crimes tribunal. In the late 1960s and early 1970s some were assailed by the Nixon administration, which wanted to find the sources of news stories that caused it difficulty. A number of journalists refused and elected to go to prison rather than comply, and that prompted a minor change in the law in some states. But it also helped to reinforce the tradition of independence. Many with long memories, and still influential in the profession, see a link and see the profession as an essential bulwark against infringements of freedom of speech.653 It is a strong argument.

  Like Gutman, Hilsum would rather just have submitted written evidence. But in her view ‘appearing at the tribunal was a deliberate, personal commitment to justice. I was telling the story to set straight the historical record.’ Not that crossing the line, however, meant that she had complete confidence that the court would ‘deliver justice or an accurate historical record’.654 Courts rarely do, it would seem.655 For the privilege of helping to set the record straight she had to accept attacks from a defence team which questioned her professionalism: by criticising her for not setting out immediately to start investigating the plane crash site, she had failed, they alleged. They heard back that that would have been foolhardy in the extreme. She might have added that, but probably didn’t, that had she done so, then like so many others, her body might never have been found either.

  But testifying at the tribunal did not turn her into a stool pigeon. She proved that she was still able to maintain a journalist’s ethical principles. When she interviewed the former Bosnian Serb leader, Radovan Karadžić, who was then a fugitive wanted by the International Criminal Tribunal for the Former Yugoslavia, she did not pass on any details of where the meeting had taken place – he remained a fugitive for a further ten years. She acknowledged that a balance between ‘the practical and ethical demands of reporting, and our responsibility as citizens – or human beings’ needs to be struck. But she was also clear that she did not think that she could testify against people like Karadžić ‘as individuals, using information gleaned from interviews, because this would be a breach of trust. Even if an interviewee is a mass murderer, the rules of “off the record” and guarding sources apply.’ That may be a fair point, but one that may trouble some people. Could one really say for certain that having interviewed a fugitive Himmler or Hitler they would not then tell where they were hiding? That would be a massive moral and professional dilemma, but shows the extremes to which the issue reaches. But no one has yet come up with a checklist that navigates a clear path through these ethical dilemmas. The debate still rages.

  But what of Akayesu, the man whose trial started this chapter? He was not a demon. He was a middle-ranking local government official. He was not a simpleton, nor a psychopath. He was literate, obedient and an unexceptional member of the relatively rigid Rwandan society. But he still managed to persuade others to kill upwards of 2,000 of his constituents, and to incite them to commit gang rape. Some thought he was an opportunist who waited to see which way the wind was blowing before acting, joining the winning side. One of the prosecutors thought his motivations were all about power and, in that sense, that he was completely amoral. A poor witness who ‘squirmed’ in the witness box and contradicted himself while giving evidence, he lost the sympathy of the court as he struggled to lie his way out of several of the holes that he had dug for himself. He was found guilty and was sentenced to life imprisonment, a sentence that was upheld on appeal.656

  13

  ANDREW GILLIGAN

  It became known as ‘the regime change video’. Two men stood reading short speeches into a TV camera with only a background logo and a pot plant for company. This was the way leaders of a coup d’état, having seized the TV station, used to address the nation. The two men announced that they had been asked to take over power because the former leaders had fallen. They needed a few attempts to read their speeches to camera without making a mistake before the video recording was ready to roll to a waiting world.657

  The location was not somewhere in a banana republic in the last century but a conference room in Broadcasting House, the London headquarters of the British Broadcasting Corporation, in 2004.

  The two men were the acting chairman of the BBC, Lord Ryder, a former Conservative minister, and the acting director-general, Mark Byford. They were an interim regime at the request of the BBC Board of Governors.

  The men whom they temporarily replaced, Gavyn Davies and Greg Dyke, were the victims of one of the most acrimonious rows between the BBC and a British government.

  When Gavyn Davies resigned as chairman of the BBC he said an attack on the corporation by the Labour government of Prime Minister Tony Blair had ‘undoubtedly scrambled our radar screens at the top of the BBC’.658 Now, a decade later, our investigations have revealed that the BBC’s underlying problem was a misunderstanding between an editor and a reporter that could have been avoided and should have been spotted. The changing of the guard at Broadcasting House and one of the biggest traumas in its history need never have happened.

  The crisis had been caused by what one reporter had said in one radio programme.

  What became known simply as ‘Hutton’, after the judge who held a public inquiry into it, was a battle between a broadcaster and a government. But it was the death of one man, Dr David Kelly, who had been caught up in the middle, that made the saga so traumatic for everyone involved.

  ‘Hutton’ mattered because the BBC appeared to challenge Blair’s claim that he had acted in good faith in joining George W. Bush’s war in Iraq to overthrow Saddam Hussein and to find the ‘weapons of mass destruction’ which, it transpired, never existed. There have been four inquiries into different aspects of the Iraq War and related events; many thousands of documents have been submitted in evidence, probably over a million words spoken in testimony and countless more written in news coverage. In this chapter we focus on the role of one editor and one reporter who were at the heart of this particu
lar crisis, but who in the words of one of them ‘don’t seem to meet too often’.

  The editor was Kevin Marsh. Educated at Christ Church, Oxford, he joined the BBC in 1978 as a news trainee and was a BBC News lifer. He had just one short career excursion outside the corporation, a spell as a producer on ITN’s News at Ten.

  The reporter was Andrew Gilligan. Also an Oxbridge man, he studied history at St John’s, Cambridge, but took a different path into national journalism. He began on a local paper, the Cambridge Evening News, and then freelanced for newspapers such as The Independent, for whom he wrote an article in 1995 headlined ‘So You Think You Can Hack It on the Nationals?’ about students who wanted to become journalists. He then set about hacking it on a national with his first staff job on the Sunday Telegraph.

  Kevin Marsh never chose Andrew Gilligan to work for him, but inherited him when he became editor of Today, the flagship programme on BBC Radio 4, in 2002. One former BBC and ITN editor, Richard Tait, was later to say that Kevin ‘picked up the bill for somebody else’s lunch’.659

  The man who ordered the ‘lunch’ (but wasn’t around to pay for it) was Marsh’s predecessor, Rod Liddle. Keen to break more exclusive stories on Today, Liddle had been given the freedom to hire investigative reporters such as Gilligan, a man he later described as ‘in many ways a strange fellow, with his incessant supply of sugary drinks and chocolate bars and crisps’.660

  Liddle encouraged his recruits to ‘push it’. At the time a Guardian article quoted a member of BBC Radio’s editorial staff as saying, ‘I think there is a feeling around the place that some of them push things a bit too far in an effort to make something sound new.’ But the BBC went one step further with Liddle; he was allowed to write a column for The Guardian. Initially the column was only about radio, but the BBC then allowed him to develop as a more general columnist, offering observations on a wide range of topics.