THE SPANISH JUDGE who is leading the judicial investigation of the death of Jose Couso, the Spanish TV cameraman killed in the Palestine Hotel in Baghdad, has finally issued an international arrest warrant against the 3 US tank crewmembers who were in the tank that allegedly shot the shell:

A Spanish judge issued an international arrest warrant Wednesday, charging three U.S. soldiers with murder in the death of a Spanish television cameraman in Baghdad.

Jose Couso was killed as U.S. forces advanced to take control of the Iraqi capital in April 2003, a National Court spokeswoman said.

National Court investigating magistrate Santiago Pedraz issued the warrant for the arrests of the three soldiers and their eventual extradition to Spain.

They are wanted on charges of murder and a crime against the international community, according to the warrant.

I write "allegedly" because none other than Andrew Gilligan (no BushBlair puppy, he) gave a different version, though he later somewhat backtracked; in any case, there was some self-criticism both by Sky News and even the BBC, which is saying a lot.

Anyway, I think there are grounds for not only not prosecuting the 3 GIs under war legislation, but for arresting all the journalists that were so keen to play witness to what had happened in the Palestine hotel. It may be them who were committing a war crime by being civilians from thrid countries in a conflict theater (whether they like it or not, journalists don't have a different consideration than regular civilians, as far as the Geneva conventions are concerned).

What I wrote last June when the judge filed a request for interrogation is still valid, I think, so I know self-quotes are not always nice, but I really don't have anything to add to it. So here it is, after correcting only some minor mistakes I just saw:

[I]t's often repeated that it was well known by coalition troops that the hotel was full of journalists. What few people say is that the hotel was also full of the few Baathist regime officials still in Baghdad; the incident took place the day before of the Iraqi capital's liberation and, immediately after the incident at the hotel, they fled the place and the city was fully taken, only a few hours later. How do I know? well, because Couso himself said so, a couple of days before his death, in a live report on the evening news at the network he worked for, Tele 5. Him speaking on the report was unusual, since he was the cameraman and it was his colleague Jon Sistiaga who was regularly on camera. I remember well how the newscast anchor, Angels Barcelo, said, "we're going to do something unusual, since Jose Couso is normally behind the camera", and I remember well how he complained that the hotel was pestered with the last baathists in town, since they were in fact using the journalists as human shelters.

So saying that the hotel was not a legitimate military target because it was full of civilians -journalists- is not saying the whole picture: someone more expert than me in war legislation may confirm whether it stopped being a protected building from the moment when the baathists found safe haven there and the civilians refused to leave it. I believe the Geneva convention IV doesn't protect civilians from third countries who choose to stay in a war theater (it would be a different thing when they cannot leave, just as it happened for example in Bosnia, where civilian foreigners and blue helmets where tied up to bridges in Mostar and other buildings).

One could even argue that, by acting as de facto human shields, the journalists were more than mere witnesses and involuntary victims: they may well have been committing a war crime under the Geneva conventions. The GC punishes civilians from third countries who choose to stay in a war theater if they are able to leave if they wish; this is because they force only one of the parties in combat (coalition troops) to refrain its firepower when going against legitimate targets (baathist officials, in this case). As I said, I studied international law long ago and haven't worked in the specific field, but from what I remember I think that would be the conclusion, a more expert opinion notwidthsanding.

Don't get me wrong, I still think it was a honest mistake by the tank crewmembers but, even if they had fired on purpose, they probably wouldn't be liable of any crime.

I think the legal rationale the CPJ and the Spanish judge are making may not be correct. Not that I'm surprised if their legal target is the US military, but I wonder why no one in the Pentagon, or in the US in general, is using these arguments. Am I missing something?

UPDATE. The Jawa report says the judge has a Don Quixote moment.

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