Extradition to Spain—US Soldiers

A Spanish judge has issued an international arrest warrant for three US soldiers.^[1] The three solders, Sgt. Thomas Gibson, Capt. Philip Wolford, and Lt. Col. Philip D. Camp, are wanted in Spain for their alleged participation in the death of a Spanish television cameraman in Baghdad.^[2] The warrant, which charges the three men with murder and “a crime against the international community,” was issued by National Court Investigating Magistrate Santiago Pedraz, and extradition of the three individuals will be sought; the warrant also notes that the US provided “no judicial cooperation” in trying to resolve the death of Jose Couso.^[3]

Getting the US to accede to an extradition of this sort will be enormously difficult for Spain, as the lawyer for the Cousu family acknowledges.^[4] In the first place, according to the second supplementary extradition treaty, neither country is compelled to extradite its own citizens,^[5] though the United States often does.^[6] Furthermore, according to the text of the original treaty, extradition “shall not be granted” if the offense is purely military in nature.^[7] It is not clear whether the offense is purely military in nature or not.

Finally, the US has signaled its hesitance to subject its soldiers to the jurisdiction of a foreign court. In objecting to the United States joining the International Criminal Court [hereinafter ICC], the Pentagon gave a background briefing on July 2, 2002, in which it said,

“Our principal objections to the ICC treaty are that it subjects U.S. nationals -- in particular, the risk is great for our armed forces -- to prosecution by prosecutors and in a court that are not accountable to any kind of authority that we could hold accountable as a country. … [N]obody in our Congress would have a voice in the definition of those crimes, and yet Americans could be prosecuted criminally for violating these purported crimes. … Americans would not be entitled to all of the protections that our Constitution affords to Americans in criminal prosecutions.”^[8]

At the heart of the objection is the fear that American soldiers would be prosecuted for crimes committed during war. The US has also secured agreements from a number of countries that US soldiers would not be extradited to the ICC.^[9]

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[1] Al Goodman, Spain Issues Warrant for 3 U.S. Soldiers, CNN.com, Oct. 19, 2005, available here.
[2] Id.
[3] Id.
[4] Id.
[5] Second Supplementary Extradition Treaty, Feb. 9, 1988, U.S.-Spain, art. 3, S. Treaty Doc. No. 102-24 (1993).
[6] See, e.g., our post on Suwit Prasoprat, here.
[7] Extradition Treaty, May 29, 19709, U.S.-Spain, art. V, para. A, sec. 5, 22 U.S.T. 737 (amended by Third Supplementary Extradition Treaty, Mar. 12, 1996, art. 2, S. Treaty Doc. No. 105-15 (1999) (renumbering article V, paragraph A, section 5 to article V, paragraph A, section 4) available here).
[8] Senior Defense Official, Background Briefing on the International Criminal Court, Jul. 2., 2002, available here.
[9] See, e.g., our post on the matter, here.