Thursday, October 20, 2005

Spanish Warrants Issued for U.S. Soldiers

This story will no doubt heighten trans-Atlantic tensions. A Spanish judge has issued arrest warrants for three U.S. soldiers whose tank fire on a Baghdad hotel killed Jose Couso, a Spanish journalist. According to the report, the United States has undertaken three separate investigations to determine whether the GIs engaged in any unlawful conduct. In each case they were exonerated. One would have thought that would be the end of the matter. But Spain now plans to prosecute the soldiers for unspecified "delitos contra la comunidad internacional."

By issuing these arrest warrants, the Spanish judge is clearly second-guessing the conclusions and thoroughness of our military investigations. Of course, any soldier who unlawfully kills an innocent civilian in the course of war should be punished. Central Command spokesman Brig. Gen. Vince Brooks has previously stated that "We don't target journalists deliberately -- not now, not ever." Spain should take this position more seriously.

As a political and strategic matter this is a bad move for Spain. First, there is no legal obligation for the United States to extradite these soldiers. Article 3 of our extradition treaty with Spain provides that "[n]either of the Contracting Parties shall be bound to deliver up its own nationals." The warrants likely will not meet with success.

Second, these warrants likely will discourage freedom of the press (especially foreign press) in the theater of war, which will inure to the detriment of all of us. As the Spanish government has noted, reporters such as Couso are "our eyes, our ears, our lives--anonymous people behind a microphone." In 2003 journalists embedded in Iraq signed waivers that agreed to hold the United States harmless in the event of death. Next time the United States will look with even greater skepticism at the prospect of any journalists on site.

Third, these arrest warrants will embolden the United States to resist joining the ICC for precisely the reasons they have expressed: fear of politically-motivated foreign prosecution of U.S. soldiers for debatable conduct in war. Conservative blogs are already abuzz that these warrants prove that the United States should never join the ICC. See here and here.

Fourth, there are plenty of other journalists who have been killed in Iraq by both sides. Why target this one incident? We do not see, for example, the Spanish judge issuing an arrest warrant for the Iraqi insurgents who killed a Spanish journalist on April 8, 2003, one day after Couso was killed.

Finally, the precedent this may set is remarkable. Any country whose civilians have been killed in foreign battle as a result of any questionable "collateral damage" may be entitled to prosecute foreign soldiers and officers. Are all of these subject to claims of "delitos de asesinato" as well? Under this precedent, countries such as Britain, France, Germany, Iran, Jordan, Lebanon, Poland, Ukraine, and the United States may also issue arrest warrants for those thought responsible for any suspicious deaths of their journalists who have died in Iraq. We are witnessing a yearning for the domestication of war.

For its part, it appears that United States refused to cooperate in the Spanish investigation. Had it done so and been able to allay the suspicions of the Spanish authorities, it may not have come to this. Apparently the Spanish authorities made two requeststo the Bush Administration, including an offer to fly to the United States to interview the soldiers. The judge wrote, "Given the nonexistent judicial cooperation offered by the American authorities in elucidating the facts" the arrest warrant is "the only effective measure for assuring the involvement of the accused in the process." It will be important for the United States to disclose its version of events in this regard.

The full text of the arrest warrant (in Spanish) is here.

8 Comments:

Blogger anonymous said...

As Prof. Alford ably highlights, this story does indeed highlight the folly of such internationl judicial efforts. The sheer gall of the Spanish court will do absolutely NOTHING to endear US opinion toward the ICJ or ICC -- and for that I thank him greatly. Nice job, Judge.

10/20/2005 1:03 AM  
Blogger AbsurdumSunt said...

I think this is a very disturbing post, considering that an international law expert has written it.

'(…) A Spanish judge has issued arrest warrants for three U.S. soldiers whose tank fire on a Baghdad hotel killed Jose Couso, a Spanish journalist. (…) But Spain now plans to prosecute the soldiers for unspecified "delitos contra la comunidad internacional."'

Spain (the country) and a Spanish judge are two separate things, as they are in any consolidated democracy (if you believe Spain is one of such). As proof of this (if you consider it’s needed) please note that the (Spanish) state prosecutor’s office has already announced that it plans to appeal the judge’s arrest warrant.

Even if it seems unspecified to you, under Spanish criminal law this is a very specific charge, with plenty of case law supporting it. Mr. Pinochet (who got away thanks to Blair) and Mr. Schillingo (who’s imprisoned), among other international human rights criminals (why do you think Castro didn’t show up in Salamanca last week?) can confirm this.

'By issuing these arrest warrants, the Spanish judge is clearly second-guessing the conclusions and thoroughness of our military investigations. (…)'

I see… So when a magistrate accepts to judge what has been established in an administrative-level investigation he’s second-guessing. Now that’s a pretty strict, pre-1789, standard for the judiciary.

'(…) Central Command spokesman Brig. Gen. Vince Brooks has previously stated that "We don't target journalists deliberately -- not now, not ever." Spain should take this position more seriously.'

What do you refer to here, when you say “Spain”? The judge (whom you cite at the beginning of the same paragraph), Spain’s present government, the community of Spanish citizens, the Spanish state? I’ll presume it’s the former. Believe me, the Spanish state - as well as any other state in the world that wishes to continue being one in the present era - takes the words of any official spokesman of the U.S. dead seriously. Oh yes, especially after knowing what happened to those weapons of mass destruction and to the links between global terrorism and Saddam.

'As a political and strategic matter this is a bad move for Spain. First, there is no legal obligation for the United States to extradite these soldiers. Article 3 of our extradition treaty with Spain provides that "[n]either of the Contracting Parties shall be bound to deliver up its own nationals." The warrants likely will not meet with success.'

Again, Spain and a Spanish judge are not necessarily the same thing, so please quit stigmatizing an entire country?

The warrants are international, not just addressed to the U.S. authorities. With the Pinochet precedent, if I were those GIs lawyer I’d advise them, for the time being, to take the European Union out of their prospective vacation plans.

'Second, these warrants likely will discourage freedom of the press (especially foreign press) in the theater of war, which will inure to the detriment of all of us. As the Spanish government has noted, reporters such as Couso are "our eyes, our ears, our lives--anonymous people behind a microphone." In 2003 journalists embedded in Iraq signed waivers that agreed to hold the United States harmless in the event of death. Next time the United States will look with even greater skepticism at the prospect of any journalists on site.'

It’s my understanding that journalists embedded in Iraq weren’t exactly the paradigm of a free press? And wouldn’t it be the other way around? That if journalists know that soldiers can be held accountable for their alleged crimes they’ll be more willing to exercise their professions in war scenarios?

'Third, these arrest warrants will embolden the United States to resist joining the ICC for precisely the reasons they have expressed: fear of politically-motivated foreign prosecution of U.S. soldiers for debatable conduct in war. Conservative blogs are already abuzz that these warrants prove that the United States should never join the ICC. See here and here.'

Minor detail you may have overlooked: the Spanish judge is a national judge, while the ICC is an international court. Two completely different ways of administering justice?

And why should the Spanish judge’s acts be presumed politically-motivated? If you can offer any consistent proof (no, what conservative blogs have to say doesn’t enter this category, not in Spain at least), please advise the (Spanish) state prosecutor’s office (the same people that are going to appeal the arrest warrants). In Spain (as in the U.S. I believe?) for a judge to act this way is a criminal offence.

'Fourth, there are plenty of other journalists who have been killed in Iraq by both sides. Why target this one incident? We do not see, for example, the Spanish judge issuing an arrest warrant for the Iraqi insurgents who killed a Spanish journalist on April 8, 2003, one day after Couso was killed.'

Pretty simple. In Spain (as in any democratic state?) a judge only issues an arrest warrant after having been asked to do so, by a valid plaintiff, after having filed a specific suit that is considered to have merits. Those who could have done so in the case of Julio Anguita Parralo (members of his family) haven’t done so. José Couso’s family did.

'Finally, the precedent this may set is remarkable. Any country whose civilians have been killed in foreign battle as a result of any questionable "collateral damage" may be entitled to prosecute foreign soldiers and officers. Are all of these subject to claims of "delitos de asesinato" as well? Under this precedent, countries such as Britain, France, Germany, Iran, Jordan, Lebanon, Poland, Ukraine, and the United States may also issue arrest warrants for those thought responsible for any suspicious deaths of their journalists who have died in Iraq. We are witnessing a yearning for the domestication of war.'

Here we agree! It’s a bad trend. Let’s all together try to establish a just, stable, impartial and efficient international criminal justice system, so that individual states don’t have to create their own extraterritorial prosecution rules. Wait a minute, maybe we just agree on what’s the statu quo, not on how to solve its deficiencies.

'For its part, it appears that United States refused to cooperate in the Spanish investigation. Had it done so and been able to allay the suspicions of the Spanish authorities, it may not have come to this. Apparently the Spanish authorities made two requeststo the Bush Administration, including an offer to fly to the United States to interview the soldiers. The judge wrote, "Given the nonexistent judicial cooperation offered by the American authorities in elucidating the facts" the arrest warrant is "the only effective measure for assuring the involvement of the accused in the process." It will be important for the United States to disclose its version of events in this regard.'

Why do you think “It will be important for the United States to disclose its version of events in this regard”? You know how the Bush Administration deals with all “War on terror” issues, those at Gitmo know, Mr. Padilla knows, those at Abu Ghraib know, the U.S. Supreme Court knows. For over four years now the “version of events” has always been the same. Why is it important in this particular case?

10/20/2005 12:31 PM  
Blogger Roger Alford said...

Thank you for your comments. They are helpful. Just a few quick replies:

1.Yes, governments are multi-vocal, not univocal. When I was referring to “Spain” I was referring to the Spanish judge. I assume that is not viewed as particularly controversial or unusual. (i.e., try Googling "Spain indicts"). The judicial branch does, of course, “speak” for the state in a very real sense, even though its pronouncements may not always be in accord with the legislative or executive branch.
2. Of course, a Spanish arrest warrant is not the same as an ICC arrest warrant. But these arrest warrants are likely to have political repercussions in any future debate about the United States joining the ICC. For many Americans the hypothetical fear of an ICC prosecutor taking action against a U.S. soldier notwithstanding exoneration within our military justice system will no longer seem so hypothetical.
3. Regarding the free press, my point was that the United States did not have to allow embedded journalists into the theater of war in the spring of 2003. It chose to allow them to travel with the soldiers while they waged war in Iraq. In the future, when journalists (especially foreign journalists) make similar requests, the United States might not be so accommodating.
4. Regarding issuing arrest warrants in this case but not others, in Spain there is a distinction made between public crimes and private crimes. The former may be pursued only by the Spanish authorities, whereas the latter may be pursued by the aggrieved person. It is my understanding that this case falls in the former category, although I could be incorrect in this regard.
5. You suggest we need a more efficient international criminal justice system. But the ICC would be unlikely to take the step that the Spanish court has taken. It likely would be a violation of the complementarity doctrine under the Rome Statute. Spain is seeking to domesticate an alleged international violation that occurred in Iraq. On the national level, the normal route in a case such as this would be to have the territorial state (Iraq) prosecute the soldiers, or a court martial by the military justice system of the state in which the soldiers serve. There is some room to argue for Spanish jurisdition under principles of international prescriptive jurisdiction, but it is the atypical route. Hope that helps.

10/20/2005 7:37 PM  
Blogger Ben Davis said...

The Spanish warrants are an excellent development. The Spanish judge apparently does not have complete faith in the US military investigations. Neither do I and I suspect many Americans. This follows up on the Italian case concerning the CIA extraordinary renditions.

Spanish court is prosecuting an international crime. National courts prosecuting international crimes is an alternative/complement to international tribunals prosecuting international crimes. American courts could do this too.

American leadership hostility to the ICJ and ICC is a distraction from the essence - alleged criminal activity abroad of the American military that the military for its reasons has determined not to pursue. That judgment does not preclude actions by the judciary of other sovereign states.

Please tell those journalists parents that they should trust the military investigation. I am tired of American law professors enabling depravity.

10/21/2005 10:50 AM  
Blogger anonymous said...

Mr. Davis says, strangely,

" I am tired of American law professors enabling depravity"

Curious, because in our system of govt, Mr. Davis, law professors enable nothing. Whether you view this as a good development or not is frankly immaterial to most people, who I'd argue do not share your view of American military activity -- which has overall acted with utterly remarkable restraint in fighting a barbaric enemy with no squeamishness, who has been adept at manipulating left-leaning press opinion.

10/24/2005 9:25 PM  
Blogger Cat said...

I don't know about anonymous's "left-leaning press opinion"... Consider the press's adoption of the moniker "THE WAR IN IRAQ", as if it were happening there by accident, and not as a result of a U.S. & co. invasion. Really, it should be "The War Against Iraq" and it is no compliment to the U.S. press that it has called the war otherwise and for so long.

"We are witnessing a yearning for the domestication of war."

Is the war over? Is it on? Are the Iraqis "insurgents" or wartime enemy Iraqis defending their country from occupation? The U.S. government's PR strategies, including the use of private contractors, could be considered evidence of the U.S. government's own desire for the domestication of war (whatever that really means).

The Spanish prosecution seems straightforward- a Spanish citizen was killed. If, under Spanish law, the family can prosecute, why shouldn't they? I don't think the family, or the judge interpreting Spanish law, cares what the US opinion of the ICC is- nor should they.

11/01/2005 12:51 PM  
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