Spanish Court Seeks Arrest of U.S. Soldiers in Hotel Attack

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Laszlo Balogh / Reuters

A rose lies in front on barbed wire of a memorial poster for Jose Couso, a Spanish television cameraman killed by a U.S. tank shell which hit Baghdad's Palestine hotel

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But not long after the Spanish case had been dismissed for the second time, Sgt. Adrienne Kinne, an intelligence officer stationed in Baghdad at the time of the U.S. invasion, came forward to suggest that the tragedy was no accident. Because her job was to listen in on the phone calls of journalists and aide workers, Kinne knew firsthand that much of the foreign press was housed at the Palestine. She was therefore disturbed to see the hotel turn up on the army's list of potential military targets. "I went to my officer in charge, and I told him that there are journalists staying at this hotel who think they're safe ... and shouldn't we make an effort to make sure that the right people know the situation?" Kinne told the webcast Democracy Now in May 2008. "And unfortunately, my officer in charge basically told me that it was not my job to analyze."

Kinne's testimony fits with what Rodríguez, who was covering the war for the radio station Cadena Ser, has long believed. The Spanish reporter was on the 16th floor of the Palestine when the tank fired, shattering her room's windows, and rendering her momentarily deaf. "First of all, it's impossible that they didn't know there were journalists there," she recalls. "There were dozens of reporters on the balconies, all of them wearing bulletproof vests with the word PRESS written on them. With even the most basic set of binoculars, they would have been able to see that."

Rodríguez, like Couso's family members, believes the attack may have been a deliberate attempt to control the press. "Is it just coincidence that within a three-hour span, the Palestine, as well as the offices of Al-Jazeera and Abu Dhabi TV were hit by U.S. forces? They knew that over the next 24 hours we were all going to be preoccupied with taking care of our dead colleagues, getting the injured to the hospital, securing protection for ourselves. And that's exactly when they took Baghdad."

It is that contention — that the attack on civilian journalists was deliberate — that explains why the National Court is investigating the killing of Couso and Protsyuk as a possible war crime. "Under the Geneva Convention, combatants are obligated by the Geneva Convention to take every effort to preserve civilian life," explains Augusto Zamora, professor of International Law at Madrid's Autonomous University. "And Spanish courts are competent to judge crimes of war, even when they're committed abroad, thanks to universal jurisdiction."

That principal has already led Spain to successfully prosecute Chilean dictator Augusto Pinochet and Argentine naval officer Adolfo Scilingo for crimes against humanity. But in this case, it seems highly improbable that the U.S. will allow Gibson, Wolford, and deCamp to face a Spanish court. Despite a bilateral extradition treaty, "the U.S. is never going to turn its soldiers over to the National Court's investigation, and in Spain, they can't be tried in absentia" says lawyer Santiago. "It does mean, however, that they won't be able to leave the [U.S.] because if they do, then they will be extradited."

David Couso, José's younger brother, isn't thinking about that possibility. He still recalls clearly the rage he felt upon learning that his brother had been, as he puts it, "vilely murdered." But for the moment, he feels that justice is being done. "We don't want a lynching," he says. "We just want a real investigation."

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