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Couso indictment oct-11

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This is and independent transcription from the originial spanish indictment of the National Court of Spain about the Couso's case, dated in October 4th, 2011.

This is and independent transcription from the originial spanish indictment of the National Court of Spain about the Couso's case, dated in October 4th, 2011.


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  • 1. THIS IS NOT AN OFFICIAL TRANSLATION EMMITED BY THE NATIONAL COURT BUT A PERSONNEL AND INDEPENDENT WORKNATIONAL COURTCENTRAL INVESTIGATIVE COURT ONESUMMARY 27/2007 INDICTMENTIn Madrid on October 4, 2011. FACTUAL BACKGROUNDFIRST .- In proceedings in the cause procedure is established that, during themilitary occupation of Iraq by U.S. and allies, after the U.S. and British troopscrossed the border with Kuwait (March 20, 2003) and make some inroads intoBaghdad for the April 7 - on the morning of April 8, 2003, the 3rd InfantryDivision U.S. Army crossed the western Baghdad to stand on the banks of theTigris River. On the morning of that day, the tanks of the 64th ArmoredRegiment, 4th Battalion, Alpha Company belonging to the said Division stoodat one end of the bridge Al Jumhuriya (as indicated in the map below). Firedfrom the same government buildings and other Iraqi military positions.Several days before the start of the occupation most of the international mediawere staying at the hotel "Palestine" in Baghdad (one of the tallest buildingsand landmarks of the city), where he had moved requested by U.S. Pentagon.Te hotel was situated in the east of the Tigris River, where were most of theresidential areas of Baghdad and, therefore, inhabited by civilians. On the otherhand, the headquarters of Arab television station Al Jazeera and Abu Dhabi,located in residential buildings, were located in the other bank of the Tigris andeast of the bridge to Jumhuriya. Both Al-Jazeera and Abu Dhabi TV hadreported on the Pentagon previously to the invasion their exact location, alsomarking their locations with Press signs grades Not awared of any other placeswith media work activity hosted.
  • 2. SECOND .- Te referred tanks were around 1,700 meters far away fromthe Palestine hotel and about 300 meters from the Al Jazeera and AbuDhabi headquarters. By this, the media could well see, flm, broadcast andreport on the activity of the cars.One of the tasks assigned to that division was to prevent the internationalmedia to report on ongoing military operations in the capture of Baghdad.To this objective, the 3rd Division had previously bombed the headquartersof the cited Arab televisions (one of them, Al Jazeera, just when two peoplewere trying to reposition the cameras at the top), and then early in themorning, shoot with the cars referred to this buildings (the camera on theroof of the Abu Dhabi location was directly strafed), making then thatthey could not record what was happening, or what would happen andthen, thereby emit.Such attacks, besides extensive damage, caused one death (the journalistTarek Ayyoub) and two wounded in the headquarters of Al Jazeera.Ten, to complete the plan, about 11:00 hours approximately, the americantank “Abrams M1”, belonging to the company “A”, fred a 120 mm againstthe Palestine Hotel, at the height of the plant ffteen. Spanish journalistfrom the television Telecinco, Jose Manuel Couso Permuy, who was flmingfrom room 1403, was hit by shrapnel from the explosion of the projectile,and died a few hours after at the Ibn Nafs Hospital in Baghdad. In thatattack was also killed a reporter for Reuters (Taras Protsyuk), which was onthe top foor and at least three other journalists (Samia Najul, Paul Pasqualeand Faleh Kheibar) were seriously injured .Te referred car had elements of vision that permitted to see very clearlythe people who were in windows and balconies on the hotel and the objectsthey carried.
  • 3. THIRD .- Te person who gave the direct order to fre at the hotel wasLieutenant Colonel Philip de Camp, commanded No 64 ArmoredRegiment of the Tird Armored Division, U.S. Army Infantry, who relayedthe order to Captain Philip Wolford, commander of the Armored Unit. Hematerially authorized who fred the shot, Sergeant Tomas Gibson, amember of the Company ‘A’ of No 64 Armored Regiment.It is unclear which American higher authority (military or political) plannedthe operation to prevent the media reports, although it could be given forimplementation to the General Headquarters Chief and Commander of the3rd Division Buford. BLOUNT, and successively to the 2nd Brigade of theDivision, Colonel David. PERKINS. LEGAL REASONINGFIRST .- As stated in the indictment dated May 21, 2009, our CriminalCode, Chapter III of Title XXIV (Crimes against InternationalCommunity), deals with crimes against persons and property protected incase of armed confict. Te precepts contained in it are the result of a processof internalization of conventional norms originally encountered in the feldof international law within the Law of War and led to the “humanization” ofthe painful situation created by war.Within that Law of War, distinguishes between ius ad bellum and ius in bello.Te frst is whether it is lawful under some conditions the use of militaryforce to -war right-(issue does not afect the present case), while the ius inbello -right in war-concerns a set of standards (as noted by the SupremeCourt, are norms of international humanitarian law) that, given theexistence of an armed confict, whether just or unjust, must observe thebelligerents, especially with certain people and places. Tis ius is based onthe principle of necessity: it is lawful only what is necessary to achieve theobjective of the war (Grotius).So, in the case, it can be said that was not lawful occupation of Iraq (therecourse to war), since neither were no weapons of mass destruction or theIraqi regime protected terrorists or gave cover to members of Al Qaeda, orNiger nuclear material purchased, but, as it is said, this is a question that cannot be taken into account in this case.Yes, however, for regard to ius in bello and relating to the case, what will besaid, obviously it was unlawful to attack or terrorize the civilian population(journalists) to achieve the objective of the war:Te said Chapter III covers the most serious violations of fundamental rulesof the ius in bello, which arent other than those specifed in Article 608 ofthe Penal Code (Geneva Conventions, Protocols and the HagueConvention).From this article is understood that protected persons are: 1 .- Te
  • 4. wounded, sick and shipwrecked. 2 .- Te medical and religious personnel.3 .- Te prisoners of war.4 .- Te civil population. 5 .- Tose who do notparticipate in hostilities.Article 608.3 states: for the purposes of this chapter, shall be protected:civilian population and civilian persons protected by the Fourth GenevaConvention of August 12, 1949 or by the Additional Protocol I of 8 June1977 . Te journalists are considered civilians. Tere is therefore no doubtthat Mr Couso was protected person.Article 611.1 of the Penal Code punishes with imprisonment from 10 to 15years, without detriment to the penalty applicable for the results produced,which at the time of armed confict or order made or indiscriminate orexcessive attacks or do object civilians from attacks, reprisals or acts orthreats of violence intended to spread terror.Tat article 611.1 of the Penal Code prohibits and punishes: a) Carrying outindiscriminate attacks. b) excessive attacks on the civilian population. c)Specifc attacks on the civilian population. d) Te retribution. e) Te acts ofviolence f )Treats of violence in order to threaten the population.Tere is therefore, special protection for the civilian population: any attack(be indiscriminate, excessive or be specifc) as threats of violence in order tothreaten the population is illegitimate, is prohibited and is punishable bylaw. Tis follows from that article, which takes up and develops theprovisions of the Fourth Geneva Convention of 12 August 1949 andAdditional Protocol I of 1977 (referred to in Article 608).Te Protocol also establishes a fundamental principle: the disputing partiesare obliged always to distinguish between civilians and combatants andbetween civilian objects and military objectives (Article 48). Even if you arequestioning the principle of distinction, they could do based on theprecautionary principle, also refected in that Protocol, which requires thatthe attack is canceled or suspended if it becomes apparent that the objectiveis not military or has special protection, or is expected to cause incidentalattack killed or wounded civilians, damage to civilian objects, or both, whichwould be excessive in relation to the concrete and direct military advantageanticipated; adding notice shall be given in due time and efective means ofattacks which may afect the civilian population, unless circumstancesprevent it. Even lacks the principle of proportionality of the same Protocol,which considers the attack as indiscriminate (and agrees not to decide,suspended or terminated) when it may be expected that it will causeincidental death or injury among civilians, damage to civilian objects, orboth.It is clear, therefore, that in no way U.S. Forces could attack the hotel andthe people who were there, in that it prohibits and punishes the attacks onthe civilian population based on the principles of distinction and
  • 5. proportionality caution. And if the hotel became a military objective,according to these principles, neither could attack in the form occurred.(Te same Minister for Defence, Mr Trillo, aware of such obviousprinciples, stated that “if in the Hotel were fedallines or any equipment ofthe Iraqi Information Ministry, this did not justify the grave mistake thatcaused the death of Mr. Couso”).SECOND .- Te U.S. Military forces were aware that the Palestine Hotelwas, and was in civilian area and could not be a military target, and that alsowas occupied by civilians and journalists, as follows from the testimony anddocumentation procedure in the case:– Te Pentagon advised the journalists to move to the hotel – sincedays before the events moved to the hotel and some were alreadyfrom March 19– Te broadcast mediat informed the embassies, Pentagon andWashington the GPS position of the Hotel,– Te soldiers themselves had a list of prohibited betweenwhom it was the mentioned Hotel, which was confrmed by a colonel of the2nd Brigade, 3rd Infantry Division, and a journalist who was in the 3 rdDivision.– Te Secretary of State Colin Powell acknowledged that he knew thehotel was packed with journalists.– Te expert report of Mr. Gonzalo Jar which includes statements,reports and situations,– RPSF interview Colonel Chief of the Brigade that attacked thehotel, Colonel Perkins, says he knew he was full of journalists.– Te Pentagon itself, through its spokesman, admitted the previousacknowledgment.– Te day before the attack some journalists hosted in the hotel weregreeting the U.S. Military from it. Added to this it is stated by the witnessesof Al Jazeera and Abu Dhabi in this court confrmed that U.S. Authoritiesknew where the media were staying.On the other hand, there is no basis for concluding that it had fred a“scout” shooter or shooters group of enemies. Moreover, the Chamber 2aSupreme Court in its order of July 13, 2010 states that (Eighth Ground)“there is no indication that hotel was being used as” shield “to commit anaction against the defendants ... there was no trace of visual error on thepresence of a sniper or scout in the hotel. Nor that there was fre on the tankin 35 minutes before, or any anti-tank artillery, able to reach it from thehotel, taking into account that was over 1500 meters away, and a grenadelauncher not reach more than 650 mts. And if any such risk, the journalistsin the Hotel must have been warned. Moreover, if one of the many versionsofered by U.S. Authorities saying that the scout or sniper was on the roof, itis not understood why the plant 15 was shoot when there were fve foorsabove.
  • 6. Tis decline the reason given by U.S. Central Command to close the fle,that is, he shot in self defense ... duly fred into an alleged shooter or groupof enemy shooters in a measured response proportionate and justifed andthat this action is fully consistent with the rules of combat. Te given reasonis based on that, however the company was under heavy attack Alpha enemyand it was detected by an enemy radio that the company was being guardedby an enemy observer located across the Tigris River and was directing theforces and fre enemy toward its position, by observing the hotel somepeople were perceived as a shooter or group of shooters on the balcony of aroom and since they saw “fashes” of light, consistent with enemy fre, shotthe projectile. He adds that after shooting the enemy fre against thecompany ceased.As stated, this information is confusing, because in the beginning speaks of“observer enemy” and then “shooter or shooters group.” It also contradictsthe testimony of witnesses, direct-Ms. Rodríguez Francisco, Mr. Sistiaga,Mr. Hernandez and Mr. Miguel Hernandez Quiñonero (plus manytestimonies of journalists who are documented, as the witness of Al Jazeeraand Abu Dhabi), who in the expansion of his remarks, said that the tankwas stopped during the last hour and received no shot, which was precededby a dull moment, there was nothing to record, it was a morning fairly quietand so they were all leaning out the window, it was the most quiet time, thatthere was not shot on the previous three quarters of an hour that the tankwas stopped ... Obviously this contradicts that there was this strong enemyfre against the company that says the “report”. On the other hand, as stated,it was known that the Palestine Hotel was in civilian area that housed thepress, that journalists themselves being used binoculars and cameras with orwithout “fash”, a fact easily guessed by the accused. But even assuming thatSergeant Tomas Gibson unaware of the condition of the hotel andaccommodation of the press, is more questionable than his superior wasntinformed and much more Lieutenant Colonel. Moreover, the Sergeant saidthat ten minutes happened since he reported such incident to his superiors,so that mediate long enough to confrm it and so distinguish whether theywere civilians or combatants. Added to this is that in that time they couldhave warned the journalists, since, for obvious and because of being media,could communicated immediately (moreover, the former Army sergeantU.S. Adrienne Kinne, Military Intelligence dessigned, said that they used tolisten the telephone conversations of journalists, thus could contact themimmediately to “warn”). Tey could have ordered the evacuation of thehotel.What is more, the visual inspection with the witnesses who attended it andthe subsequent forensic (judicial and party) and on the occasion of it showson the contrary to the assertions of Central Command, also taking intoaccount that the vision of day of the events was better than the day ofinspection. Te hotel building as it was a hotel according to the labelexisting, it was perfectly visible and then shooting a missile of thecharacteristics indicated it is entirely disproportionate to knock out a scout
  • 7. or sniper. And the expert has shown that the elements of sight of the carcould see right the people who might be there including the objects theycarried. And, indeed, shortly before the events (according to several videoreports proceeding in the proceedings and witness statements), two U.S.Helicopters hovered overhead. It is obvious that they have qualifed visiondevices and precision weapons, so that they could see if it was a “scout” or ajournalist (videographer, photographer or reporter, and if any one of thefrst, it could have killed, without any need to fre the missile.THIRD .- Te facts stated, therefore, as also noted by the Supreme Courtin its order of July 13, 2010 which reversed the dismissal declared free bythe Criminal Chamber of the Court, may constitute a crime againstcircumstantial the international community, under Article 611.1 of theCriminal Code in relation to Article 608.3 of the Penal Code, which statesprotected individuals, be subsumed under the rules of internationalhumanitarian law, in real competition with homicide, defned and penalizedArticle 138 of the Penal Code, given the excessive and indiscriminateattacks on civilians in the causation of the death of Mr. Couso.Moreover, there is more than circumstantial basis for believing that it is alsoan act of violence or threats in order to terrorize civilians or journalists: theywere terrorizing journalists not to be witness (and, therefore, theinternational community), the way it was going to be the taking ofBaghdad. Circumstantial is confrmed, even by reductio ad absurdum orcontradiction, that one of the missions of the 3 rd Division was to avoid themedia could report what was going to happen in the confict. In fact, thevenues where they could fnd the media were only the Palestine Hotel andthe buildings occupied by Al Jazeera and Abu Dhabi. It has the bombing ofthe headquarters of TV as the shots of the car to them, all before the fringon the Palestine Hotel, and also confrmed by the respective witnesses whowork in them in the statement given on 13 January. Also, both the locationof such venues as the hotel was confrmed by this instructor at the steptaken in Baghdad on January 28, 2011. Similarly (documentary andtestimonial) has not accredited any enemy fre from TV, but it is accreditedthat such sites were identifed because of the banners hanging from themwith the word “TV”. Tis is compounded by evidence of other journalistswho confrmed that the attack was premeditated (Ángeles Espinosa,Monica G. Prieto).First the arab headquarters are bombed (one of them, Al Jazeera, just whentwo people tried to reposition the cameras at the top, resulting in the deathof one of them), then the cars get placed on the bridge located between theHotel and such sites, they shoot at them with great accuracy (the camera is agunned) with the tank and then a missile is launched at the Palestine Hoteljust to the height of the plants where the two journalists were flming. Tishappens almost in three hours. And indeed, it was possible that no report,there is no evidence of images of Baghdad in the next few hours and it is inthose moments in which U.S. Troops entered Baghdad and, according tomilitary authorities after the war was “over“. No one, therefore, could refect
  • 8. the capture of the city until the next day, as there was fear caused, a singlecamera ready to peer into the windows of the hotel. Tere are signifcant,moreover, the statements of the U.S. Army former sergeant AdrienneKinne, aimed at Military Intelligence, made on May 13, 2008 in the TVprogram “Democracy Now” stating that she received an email that pointedthe Palestine Hotel as a military objective potential for the army referred,putting this person to her superior her surprise at this since the press wasstaying, and was replied that "someone at a higher level in the chain ofcommand knew what they were doing."FOURTH .- Tere are reasonable grounds to have the perpetrators of suchcriminal ofenses Sergeant THOMAS GIBSON, Captain PHILIPWOLFORD and Lt. Col. PHILIP DE CAMP, given the specifc action ofeach of the defendants (order, authorization, shot) determined on the basisof their own explanations in the media and documentary work in action.As stated in the facts of this resolution, it is unclear which American higherauthority (military or political) planned / ordered the operation to preventthe media from reporting and therefore the bombings and shootings to themedia, although, given the chain of command, it obviously had to besuperior to the defendants. Tus the order had to come or at least be sent forexecution to the Head of the Headquarters and Commander of the 3 rdDivision Buford BLOUNT, and subsequently the Chief of the Division 2 ndBrigade, Colonel David PERKINS, to transmit it to Lt. Col. Philip deCamp. It is therefore appropriate to have them as suspects and not asprocessed as the argument of the chain of command can not be establishedby itself, the absence of other data, prima facie.To this end, there rogatory deliver timely, as was done with the process inpursuit of the right to defense in order to inform defendants of new factsand crimes they are charged, they are asking for and receiving statementU.S. Authorities, and by this Court with or without displacement of thesame or of the judicial commission.FIFTH .- From the moment that the Summary be a prima facie caseagainst a certain person, it is processed and sent from declaring that theyunderstand the proceedings in the same manner and form set forth in theAct, in accordance with the requirement of the Article 384 of the CriminalProcedure Act.SIXTH .- According to Article 116 of the Criminal Code, every personcriminally liable is also civilly liable and the liability of civil responsibilitythat may be direct or subsidiary must be secured with deposit or seizure ofproperty, in accordance with Articles 589 and following of the CriminalProcedure Act.SEVEN .- Te U.S. Central Command closed the case on the grounds thatthey fred in self defense ... duly fred into an alleged shooter or group of
  • 9. enemy shooters in a measured response proportionate and justifed and thatthis action is fully consistent with the rules of combat. Obviously, thiscontradicts the arguments and concluded in this case and with it all thereport submitted by the U.S. Justice Department dated June 26, 2006 (basedon judicial assistance which they rejected). Te report noted that there hadbeen a “thorough and detailed investigation” into the incident. Obviously, inview of the proceedings, such research can not have that capacity, it certainlyhas not had many accounts the procedure in the case and expert reports andother steps taken, even with the testimony of Mrs. Sergeant . Kinne, whichwould certainly contribute important information in the American record.Well, inasmuch as in the aforementioned report stated (pages 837-845) thatthe United States are responsible for investigating and, if necessary, to sue(prosecute) any complaint relating to alleged abuses by Armed Forcesmembers in the conduct of military operations in conficts in which areinvolved, it is appropriate to inform the Department this resolution and toproceed accordingly, especially if Spanish invesstigation is whether judicialand that the one held in the United States had no such character (would bepurely administrative or military), so it would already be in a position toinitiate such legal action. In efect, this Court would refer if requestedtestimony of the proceedings.Having regard to the said legal rules and other general and relevant forapplicationID ECREE: DECLARE process in this case to SergeantTHOMAS GIBSON, Captain PHILIP WOLFORD and LieutenantColonel PHILIP DE CAMP, with who will be taken the subsequentproceedings in the manner and form set forth in the law. Defendants arerequired to set out for the result of the fnancial responsibilities of the casegive bail in the sum of one million euros and if unverifed in the twenty-fourhours following, then seize sufcient property to cover the amount indicatedand proven by law, if not possess, their total or partial insolvency, and Get inon the particular separate piece.Get rid letters rogatory to the U.S. Authorities with a copy of this resolutionto notify the Chief of the Headquarters and Commander of the 3rdDivision Buford BLOUNT, and the Chief of the Division 2nd Brigade,Colonel David PERKINS of the facts and crimes they are accused, askingthem to get declaration and U.S. authorities, and by this Court with orwithout displacement of the same or of the judicial commission.Refer testimony testimony of this resolution to the U.S. Justice Departmentto proceed if, as claimed responsibility, and based to the proceedings in thiscause, continue or reopen the investigation of the facts.Notify this resolution to the parties in person and the public prosecutor,
  • 10. warning that it may be appealed against reform and a subsidiary of appeal infact, within three days of notifcation of this decision.Tus, for this car, I ordered and signed by the Illustrious. Mr. D. Santiago J.Pedraz Gómez, Judge of the Central Court of Instruction Number One, Iswear.DILIGENCE .- met agreed then, I attest.

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