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.