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SPAIN: Court Agrees to Try U.S. Soldiers for Reporter’s Death in Iraq

Tito Drago

MADRID, Oct 17 2003 (IPS) - Three U.S. soldiers are to be indicted in Spain for the death of Spanish journalist and cameraman José Couso in the war in Iraq. The Audiencia Nacional, equivalent to a federal court, on Friday accepted the lawsuit filed in May by the victim’s family.

A source from that court told IPS that the death could be categorised as a "crime of war", because the ones who fired the weapon were soldiers and the victim was a civilian.

Even if it is proved that there was no intention to kill, Article 23.4 of Spain’s Organic Judicial Law would allow it to be described as "a casual but intentional crime of war."

The source said these criteria were applied in the case against the perpetrators who set fire to Spain’s embassy in Guatemala in January 1980, killing 37 people.

That lawsuit went forward because there were Spaniards among the dead, giving Spanish courts jurisdiction to try the case – a precedent that will have to be taken into account in the Couso case.

Couso, 38, father of two young children, died in Baghdad on Apr. 8 when he was mortally wounded by a shell fired from a U.S. tank at the Palestine Hotel, the known residence for most foreign journalists covering the war in Baghdad. There were no Iraqi forces in the area.

The Central Command (Centcom) of the U.S. army said in a report released Aug. 11 that the attack was based on reliable intelligence reports about an enemy lookout that directed fire against A Company of the 3rd Infantry’s 64th armoured regiment, to which the tank that fired at the Palestine Hotel belonged.

According to the Centcom report, A Company personnel "observed a person with binoculars on the balcony of a room on the upper floors of a large tan-coloured building." It was only "some time after the incident" that the soldiers realised that it was the Palestine Hotel.

The soldiers also saw "flashes of light, consistent with enemy fire, coming from the same general location as the building." The tank fired "at the suspected enemy observer position," says the text.

"Immediately following that, monitored transmissions indicated that the enemy observer was taking fire and coordinated enemy fire directed at A Company ceased."

"The activities on the balcony of the Palestine Hotel were consistent with that of an enemy spotter" and the tank fired "a single round in self-defence in full accordance with the rules of engagement," concludes the Centcom report.

Judge Guillermo Ruiz Polanco, of the Audiencia Nacional, accepted the lawsuit filed May 27 by Couso’s mother and siblings against three members of the 3rd Infantry Division for "assassination and crime of war".

The defendants are Sgt. Tom Gibson, Capt. Phillip Wolford and Lt. Col. Phillip de Camp, the last being identified by the plaintiffs as "the person who gave the order to fire on the Palestine Hotel.

Respected jurist Leopoldo Torres, former attorney general of Spain, predicts that the case will not prosper because the chief prosecutor of the Audiencia Nacional has demonstrated in previous cases that he would oppose such proceedings.

This case has no future, but the lawsuit that Lola Couso, the victim’s widow, is planning to file in the United States does, added Torres.

Couso confirmed in an interview with IPS that she will file a civil lawsuit in the United States, advised by Torres himself and by the international organisation Reporters Without Borders, which is actively pushing for a murder investigation and appropriate legal action.

As far as the case that was accepted Friday in Madrid, Couso agrees with Torres that it has little chance of succeeding. Nevertheless, she said, "They must carry it forward, because it sets a precedent."

Washington firmly opposes trials of U.S. citizens in other countries, and the Spanish government is creating obstacles for the local court decisions that call for the extradition of the accused.

Journalist Gustavo Sierra, of the Argentine daily Clarín, was at the Palestine Hotel on Apr. 8, two storeys above Couso. Sierra, like dozens of journalists who witnessed the attack, said there was nothing that would have given the invading forces reason to suspect that anyone at the hotel was attacking them.

Jon Sistiaga, of Tele5 (where Couso worked), Monica García Prieto, of El Mundo newspaper, and Carlos Hernández, of Antena 3 Televisión, all based in Spain, were subpoenaed by the judge to testify as witnesses on Oct. 23.

The judge took that decision after receiving a report from government attorney Ignacio Gordillo in favour of opening the investigation, despite the fact that the chief prosecutor of the Audiencia, Eduardo Fungairiño, told the media on May 8 that the ministry would oppose the action.

Fungairiño could still appeal, but on previous occasions the Audiencia has refused his petitions, as occurred in the case that Spanish judge Baltasar Garzón carried out – unsuccessfully in the end – against former Chilean dictator Augusto Pinochet, for crimes against humanity.

Rafael Permuy, Couso’s uncle and spokesman for the family, said, "Finally, a door to justice is opening," and commented that Friday’s decision stands in contrast to "the shameful attitude of the Spanish government," which has never given an opportunity to find out the truth or to carry out justice.

Speaking on behalf of an artists group against the Iraq war, El Gran Wyoming, a Spanish television host and artist, criticised the centre-right government of José María Aznar for "insisting on considering Couso’s death an accident."

"An accident does not have a previous phase of aiming, charging and firing against a concrete target," he said.

El Gran Wyoming predicted that the government would never demand justice in the case because the Aznar administration is known for "sticking out its chest before the weak, and lowering its pants before the strong," a reference to Madrid’s continued support for Washington in the war against Iraq.

Izquierda Unida (United Left), the political opposition coalition, describes Couso’s death as "a crime of war… committed in the context of an illegal and unjust war, supported by José María Aznar to its ultimate consequences."

The coalition announced that its representatives in local government would file motions demanding that the national government order an independent investigation into Couso’s death.

These efforts come on top of the initiative by all parliamentary groups in the National Congress, except for Aznar’s governing Popular Party, which have requested the diplomatic and political steps necessary for investigating the killing.