No Court in the Land

A couple months back, an Italian judge issued arrest warrents for about a dozen CIA operatives implicated in the "extraordinary rendition" (i.e., abduction to a foreign country for the purposes of torture) of a suspected terrorist from Italian soil. And I say, yay, judge. If Italian spies kidnapped someone from US soil--for whatever reason--I'd want them thrown in jail too. Kidnapping is kidnapping, and kidnappers should go to jail.

But now a Spanish judge has gone and raised far more complicated questions. The BBC reports that Judge Santiago Pedraz issued an international arrest warrant for three American soldiers, the crew members of a tank that fired on the Palestine Hotel in Badhdad April 8, 2003.

By firing on the hotel, the soldiers killed two people, one of them José Couso, a reporter for Spain's Telecinco network. The soldiers and the Pentagon say that the soldiers believed themselves to be under fire from the hotel. The Committee to Protect Journalists and eyewitnesses say that nobody in the hotel fired on the tank.

Couso's relatives brought charges because they're furious. They should be. They lost a relative to a mistake, possibly to a stupid mistake. And they want somebody to pay for that mistake. I get that. I would too.

Couso's relatives can blame who they want. But I don't think courts should be able to blame soldiers for honest mistakes made in a war zone. A lot of people doubt that it was an honest mistake, since the Palestine Hotel at the time housed most foreign journalists in Iraq and many of them didn't have much praise for the war. Unless, however, someone produces compelling evidence that the the tank crew fired on the hotel on purpose, criminal prosecution is wrong. Combat inherently breeds confusion and sometimes requires impossibly quick decision-making. It's hypocritical and cynical to prosecute someone for a mistake anyone might have made in the same position. (I'm not saying the soldiers didn't screw up. Maybe they did. I don't know. But I do know that no matter how competent soldiers are, bad enough combat conditions will inevitably force them into errors. And that's what combat conditions do--get bad.)

Still, although misguided, the prosecution nonetheless raises a couple big issues. First, there's the Bush administration's refusal to join the International Criminal Court. That refusal makes it impossible for the Spanish government to demand the extradition of the accused soldiers. Opponents of the US's joining the court described precisely such a scenario when they lobbied against signing on, and this particular prosecution makes them look justified in their opposition. But I think the prosecution actually underscores the importance of our signing onto the ICC.

Beyond the real and justifiable anger of the family, then, this is a protest prosecution motivated by Spanish political resentment of the Bush administration's unwillingness to cooperate with the world on almost anything and its willingness to unilaterally invade foreign countries.

I honestly don't know the ground rules of the ICC, but I suspect they disallow prosecutions for soldier error. As I remember, they only allow prosecution of troops for war crimes. And I'm all for letting our troops be tried for war crimes if they actually commit them. I support anything that makes commanders and soldiers--of any nation--think twice before raping someone, shooting an unarmed child from behind, or even just stealing a poor taxi driver's taxi. War can make people crazy; it certainly makes war crimes more likely. But soldiers can avoid war crimes even under conditions in which they can't avoid mistakes, so it make sense to prosecute war crimes.

So in the long run signing up for the international court would help us by cutting down on protest prosecutions. If judges and potential plaintiffs from other countries could believe that the US takes civilian welfare and war crimes seriously, they wouldn't feel compelled to resort to blaming soldiers caught in battlefield chaos for creating battlefield chaos. If everyone from other countries could believe that the US takes civilian welfare and war crimes seriously, we would have more goodwill abroad, which would help us track down al-Qaeda. Which would be good for our soldiers.

The second big issue that the Spanish arrest warrant raises is the issue of accountability. Someone should be held accountable for the deaths at the Palestine Hotel. I blame the people who started the war and put that tank crew in a combat zone in the first place. I blame the Bush administration and the Congress that lubed itself up to faciliatate the insertion of the administration's justifications for that war. People will die in war. Innocent people will die in war. When you order troops into battle, you know that your order will result in some of them dying, in some of the enemy dying, and in some of the civilians from one or both sides dying. If you're a good person, you don't relish those deaths. You especially try to avoid civilian deaths. But you know they'll happen. That's why the Congress and the Commander in Chief should only go to war with those who have invaded our country. Because whatever else they're doing, when they go to war, they're calling for death. And if you call for death and you have another choice, you've committed an evil act.

So if people in the administration crucial to selling the war effort lied in doing so, then, yes, they should go to jail. But they should serve life sentences here before we let the ICC have them.

On the other hand, if they didn't lie, if they just screwed up, then they shouldn't face criminal charges here or abroad--and no way should their subordinates in that tank. But any senior officials directly linked to the screw-up should face eviction from office and public shaming for the hubris and indifference that led to a massive waste of taxpayer funds and the loss of 25-30,000 total lives. No court can pass that judgement. But we as citizens should.