A military court has decided it will no longer pursue the prosecution of five soldiers who were under scrutiny for allegedly abusing two prisoners at the Spanish base in Diwaniya, Iraq in 2004.
The servicemen, who are all current or former members of the elite military unit known as La Legión, were facing between 10 and 25 years in prison if found guilty, according to the Military Penal Code.
The case came to light in March 2013 when EL PAÍS released video footage showing three soldiers kicking two defenseless men inside a cell, under the watchful eyes of three other soldiers.
The suspects were a captain who now works at the National Intelligence Center (CNI), two corporals – one of whom is still with La Legión and the other with the Civil Guard – and two Civil Guards who were legionnaires at the time.
The decision to revoke the prosecution is not grounded on the credibility of the video footage, nor on questions regarding the identity of the soldiers involved. Neither does the court doubt “the unquestionable gravity of the alleged crime.”
Instead, the decision is based on “the lack of definition of the victims’ condition.”
In a surprising interpretation, the court states that the Geneva Conventions on the protection of prisoners of war “in no way extends to terrorists” and that the victims of this particular crime could, in fact, be “the three alleged terrorists” who were transferred to the Diwaniya base on January 27, 2004 and thought to be involved in the mortar attack against Tegucigalpa Base, a US installation in Iraq.
The idea that the Geneva Conventions do not apply to alleged terrorists is nothing new. The doctrine was applied by former US president George W. Bush to justify the detention center in Guantánamo (Cuba). The US administration considered detainees in Iraq and Afghanistan “illegal enemy combatants” rather than prisoners, thus denying them the rights encoded in the conventions.
The court says the victims could be “three alleged terrorists” transferred to Diwaniya on January 27, 2004
Yet in 2006 the US Supreme Court struck down this interpretation and said the Geneva Conventions did apply to Guantánamo prisoners.
The military tribunal has not completely acquitted the suspects. Instead, it has ordered the original investigating judge to identify the victims of the beatings to determine what category they fall under.
But this will be nearly impossible in practice, as the Army Chief of Staff has stated that records of detainees held by Spanish troops in Iraq have been lost.
The military court is contemplating the possibility of handing the case over to the civil courts, where such crimes carry a top sentence of eight years. However, the statute of limitations means that would probably not be enforceable.