The AP reports that a Spanish judge, one Santiago Pedraz, has issued an arrest warrant for three US soldiers: Lieutenant Colonel Philip deCamp, Captain Philip Wolford, and Sergeant Shawn Gibson (all from 3rd Bn./64 Armor Rgt., 4th Bde., 3rd Inf. Div.). The soldiers are wanted for an incident during the Second Gulf War in 2003, when a US tank, whose crew believed they were under fire, opened fire on a Baghdad hotel, from whence they believed the shots were coming. The accusation is that the soldiers violated the Geneva Conventions, and the "Rome statute" creating the International Criminal Court. The US is not a party to the Rome statute.
Two journalists, including a Spanish television reporter, were killed. The US Army reviewed the incident, and found that the soldiers believed they were under fire, and that their reaction was justified.
Innocent persons are killed in war, and there is no evidence whatever that the soldiers, at all time acting under orders, killed these people intentionally. Judicial action against these officers and soldiers is outrageous.
However, the Spanish Court’s activities are part of a new trend in “international law” called “universal jurisdiction” which holds that any court, anywhere, may give itself jurisdiction over so-called violations of human rights. Spanish legislation gives that country's courts authority to act beyond Spain's borders in the case of alleged criminal acts which purportedly violate treaties to which Spain is a party. Moreover, private individuals may bring such cases to the attention of magistrates independently of prosecutors or law enforcement.
Such legislation, and this trend in the law generally, is both creation and creature of the media, non-governmental organizations, (NGO's) liberal activist groups, and other anti-American fellow-travelers and organizations. Universal jurisdiction is a direct attack on national sovereignty, and allows lawyers, judges, NGO's and the media to intrude into foreign and military policy matters properly left to sovereign governments, diplomats and generals. Other examples are the attempted Spanish prosecution of former Chilean President Augusto Pinochet, and various efforts to prosecute Henry Kissinger and other unpopular conservative politicians and diplomats – usually in Europe.
This tendency is only going to accelerate, and it will soon be impossible for American diplomats, soldiers, and anybody else with current or former connections with the government to be certain that they can travel abroad in safety. This is the product of an effort by transnational lawyers, NGO’s and weaker states to indirectly coerce sovereign governments into policy choices they would not otherwise pursue. Spain, and the other governments putting up with this nonsense, and the self-interested, anti-American lawyers in Europe, here and elsewhere pushing it are making a madhouse of diplomacy and military policy. The US government should immediately prepare to retaliate.
To begin with, this Spanish judge, and all abetting and assisting this prosecution should be indicted immediately under 18 U.S.C. § §1201(a)(5), 1201(d) and 1201(e) for conspiring to kidnap US officers and employees while “…engaged in, or on account of, the performance of official duties.”
Secondly, the military, the FBI and the State Department should be directed to, so far as is legally possible, to immediately begin compilation of lists of persons present or visiting in the United States or in places subject to its control, including employees of foreign governments – who are nationals of countries which permit their courts to practice such aggressions against American citizens and their government – whether via the theory of “universal jurisdiction,” human rights laws, or in any other way. Similar steps should be taken as to financial assets in this country of offending states and their citizens. To the extent there are legal barriers to such actions, the President should immediately seek the appropriate legislation.
In the event Spain or any other country moves to lay hands on American citizens, based on such patiently illegal justifications, the United States government should immediately, with regret, hold the persons listed in confinement until our citizens are released. (Maybe at Guantanamo ?)Two can play at the hostage game.
The Navy should be directed to dust-off plans for naval blockades, and seizures of shipping of countries engaging in such activities. Lots of water around Spain. Further, all branches of the military should ready contingency plans to be used when possible for the rescue of US citizens wrongfully detained on such specious grounds.
Additionally, we need to see to affairs in our own legal house. The anti-national effort to weaken governments, politicians and diplomats in favor of the transnational chattering classes has support here also. This should be combated. Once and for all, it needs to be definitively established that international “law” is not domestic law: but a component of foreign policy subject to political control, and not the other way round. To this end, we need legislation immediately, amending Title 28 of the US Code as necessary to provide that the proper construction of international law, treaties and similar international agreements is determined by the President, or by the Secretary of State, and that construction shall be binding on US Courts.
Make no mistake: the concept of universal jurisdiction is a threat to the sovereignty not only of the US, but of all other states. This Spanish judge is perilously close to committing an act of war against the United States, and he should be answered in kind. Yet again, the Lilliputians: weaker nations, NGO’s, the media, and the international chattering classes – are trying to use the lawyers to tie down Gulliver – the government of the United States. They need to be slapped down good and hard.