MADRID — Olga Rodríguez was on the 16th floor of Baghdad's Hotel Palestine when a US tank fired, destroying her room's balcony, shattering its windows, and rendering her momentarily deaf. The single incendiary shell severely damaged three floors of the building where she and roughly a hundred other journalists were housed. But that wasn't the worst of that April morning in 2003. Ms. Rodríguez's colleague, TV cameraman José Couso, was fatally wounded in the attack.
Almost four years later, Mr. Couso's family members and friends are still seeking justice for his death. Recently, Spain's Supreme Court agreed that they may have a case, and last week, the lower National Court issued an international search and capture warrant for the American soldiers implicated in the incident.
Although it is unlikely the three will ever stand trial in a Madrid courtroom, the case has drawn worldwide attention and is raising serious questions about wartime justice and the right of one country to judge another's citizens.
"Spanish courts are competent to judge crimes of war, even when they're committed abroad, thanks to universal jurisdiction," says lawyer Leopoldo Torres, who is representing the Couso family. In fact, the principle of universal jurisdiction – which holds that some crimes are so grave as to warrant judicial intervention from any country – has already been used to justify the Spanish prosecution of late Chilean dictator Augusto Pinochet and former Guatemalan president Efraím Rios Montt. The Couso case will explore whether the principle also applies to soldiers during wartime.
According to the New York-based Committee to Protect Journalists, which conducted interviews with eyewitnesses, many Western reporters were observing the struggle for Baghdad from the hotel's balconies when the American M1A1 Abrams tank, stationed roughly three quarters of a mile away, turned toward the Palestine and fired a single round which mortally injured both Couso and Reuters cameraman Taras Protsyuk. The American tank sergeant, Thomas "Shawn" Gibson, later said he reported a suspicious spotter on the roof of the hotel to his superior, Capt. Philip Wolford, and received an order to fire. Wolford's commanding officer, Col. Philip DeCamp, was also implicated in the attack.
The Pentagon, whose Central Command in Iraq has contended that there was gunfire coming from the direction of the hotel, says that no crime was committed. "We fully investigated the incident and determined that US servicemen acted appropriately," says Pentagon spokesman Lt. Commander Joe Carpenter. "[The journalist's death] is unfortunately a tragedy of war."
Not everyone sees it that way. "I went to Baghdad knowing that I was taking the risk of getting hit by an Iraqi bomb, or being kidnapped by Iraqis," says Rodríguez. "I never expected to be fired upon – or that José would be killed – by American forces."
Mr. Torres takes it a step further: "This was a deliberate attack against civilians like journalists who are specially protected by the 4th Geneva Convention, without any provocation on their part."
Rafael Jiménez, secretary general of the Spanish branch of Reporters Without Borders, says that on the day US forces took the Baghdad airport, journalists on the scene reported that it wasn't an easy fight. "The Army wasn't going to let that kind of 'propaganda' continue," says Mr. Jiménez. "So the day after, they attacked Al Jazeera's office, and two days later they attacked the Hotel Palestine. It was a clear act to intimidate the press that wasn't embedded and that [therefore] couldn't be controlled."
It is that contention that would qualify the killing of Couso and Mr. Protsyuk as a war crime and not simply murder under international law.
"Attacking a civilian building or worse, civilians themselves, is about as clear a definition of a war crime as you can get," says Roger O'Keefe, Director of the Lauterpacht Centre for International Law at Cambridge University.
The Couso family first filed a legal complaint in May 2003, but the National Court dismissed the case, citing a lack of jurisdiction. They appealed, and in December 2006, the Supreme Court overturned the earlier ruling.
The National Court must now begin again the investigatory phase of the trial, and has called the three soldiers to testify. If they do not appear, under Spanish and international law, they can still be tried in absentia.
Professor O'Keefe questions, however, whether there will be enough evidence for the case to stand up in court. "It's highly unlikely that the United States or the Iraqi government will wish to hand over information to the Spanish Court," he says.
It is even more unlikely that the three accused would be extradited. "At this juncture, I'm not aware of a scenario in which the servicemen would appear in a Spanish court," says Lt. Commander Carpenter.
But that doesn't mean the case is without impact. Besides the symbolic importance it may carry, the search and capture warrant, submitted to Interpol, will effectively keep the three soldiers accused from leaving the United States. Should they travel to a country with an extradition agreement with Spain, they would be immediately subject to arrest.
Jiménez suggests the case may have another effect. "When word got out about Abu Ghraib, it was the Americans who conducted the first investigation," he says. "We hope this case will do the same thing, that it will prick Americans' conscience, and that they'll call for their own investigation."