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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WHY MULTILATERAL JUSTICE doesn't work: because it leads to mishandling, that's why:

Judge Santiago Pedraz will file a request for interrogation to the United States in accordance with the request established by “Journalists Without Borders.” Pedraz intends to interrogate three American soldiers, Sergeant Thomas Gibson, Captain Philip Wolford and Lt. Colonel Philip de Camp in regards to the death of Spanish reporter José Couso. Couso was killed at the Hotel Palestine [in Baghdad] when the M-1 Abrahms tank controlled by Gibson fired upon the hotel. Wolford was the officer who authorized the shot after Gibson had notified him that there was someone watching them with binoculars from the hotel; de Camp was the officer who ordered to open fire on Hotel Palestine.

US official reaction:

A Spanish judge wants to question three American soldiers as suspects in the death of a Spanish cameraman who was killed when a U.S. tank fired on a hotel housing foreign journalists during the 2003 assault on Baghdad.

The Pentagon has exonerated the U.S. soldiers from any blame, but High Court Judge Santiago Pedraz wants to question the three who were in the tank, a court official said on Tuesday.

"It would be a very, very cold day in hell before that would ever happen," said a State Department official, who asked not to be named. "I just cannot imagine how any U.S. soldier can be subject to some kind of foreign proceeding for criminal liability when he is in a tank in a war zone as part of an international coalition."

Not only this: it'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, was regularly the journalist 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 since 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. HispaLibertas has a roundup of the English-speaking blogosphere's reaction to this (it's a Spanish blog, but the quotes are in the original language).

UPDATE II. Greyhawk comments.

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THAT'S A SURPRISE:

[Spain's] Prosecutors on Friday appealed a judge's decision to charge three U.S. soldiers with homicide in the death of a Spanish journalist in Iraq, a court official said.

Prosecutors at the National Court said the troops from the U.S. 3rd Infantry, based in Fort Stewart, Ga., committed no crime when their tank fired a shell at Baghdad's Palestine Hotel in 2003, killing Jose Couso, a cameraman for the Spanish television network Telecinco, and Taras Portsyuk, a Ukrainian cameraman for Reuters.

The prosecutors characterized the attack as an accident of war, said a court official who spoke on customary condition of anonymity.

More at Jurist.

So, let me see: the Spanish prosecutor, who ultimately follows Zapatero's anti-American, anti-war government that has been shouted "Couso was assassinated in could blood by Bush" from the rooftops, suddenly acting rational? (here's some background)

There must be a reason. Mmmm. Let me see. Oh, yes, Reuters reveals the key:

Relations between Washington and Madrid have been strained since Spain's Socialist government withdrew troops from Iraq after winning power in 2004. U.S. Secretary of State Condoleezza Rice is due to visit Spain on June 1 -- the first senior member of President Bush's cabinet to travel there since 2004.

(My emphasis)

Aha. I knew there had to be something. Apparently it's not only ETA the ones they're selling out to...

Meanwhile CiaraZapatero is still waiting for Bush's call. Wonder what he'll do to get W to finally pick up the phone, Uh huh uh huh uh huh uh huhuh huh, pick up the phone...

THERE WE GO AGAIN:

A Spanish judge reinstated charges Thursday against three American soldiers in the death of a Spanish journalist covering the Iraq invasion in 2003.

Judge Santiago Pedraz said he had obtained new testimony from witnesses contradicting the U.S. argument that the tank crew was responding to hostile fire when it shot at a Baghdad hotel housing Western journalists.

[...] These reporters — Jon Sistiaga, Olga Rodriguez and Jesus Quinonero — testified that the tank had not come under fire before shooting at the Palestine Hotel. They said that morning of April 8, 2003 was particularly quiet outside the hotel, the judge wrote.

"There was nothing to film. It was a rather calm morning, and that is why they were all standing by the window," the judge wrote.

"Obviously, this contradicts the argument that the company was under strong enemy fire," the judge wrote.

I also remember some journalists who were at the Palestine hotel back then that they day of the incident they didn't hear the shell that impacted on the 14th floor where Couso was killed, but somehow they were totally, positively sure that there hadn't been any fire whatsoever aimed at the US tank from the rooftop, several floors above the 14th. Somebody explain this to me, please, how could they hear nothing of the big shell blast, but were so sure that there had been no other fire from the hotel.

In any case, if this contradicts the argument that the US company was under strong enemy fire, I'd challenge the Spanish judge to get the testimony of Jules Crittenden, who was with the US company at that very moment, and who has offered to come to Spain to testify. C'mon, judge.

UPDATE. Jules Crittenden has much more on this.

A SPANISH COURT again drops charges against US soldiers in the Couso case:

A Spanish court has thrown out charges against three U.S. soldiers in the death of a Spanish journalist in Iraq and recommends the case be closed.

The National Court said Tuesday investigative magistrate Santiago Pedraz has produced no new evidence to indicate that the soldiers had acted incorrectly, given that they were in a war situation.

(Previously on this topic in Barcepundit, here)