Thursday, June 09, 2005

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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