Judge keeps charge against U.S. troops

A judge on Thursday upheld an indictment against three U.S. soldiers in the death of a Spanish journalist in Iraq, rejecting an appeal filed by national prosecutors.

Spain's National Court charged the three American soldiers in April with homicide and a crime against the international community for firing a tank shell at Baghdad's Palestine Hotel and killing TV cameraman Jose Couso.

The national prosecutors' office challenged the indictment last week, arguing that the April 2003 attack had been an accident of war.

Under Spanish law, investigative magistrates file charges and prosecutors, who must argue the case at trial, can contest those charges if they do not feel they can be succesfully tried.

Judge Santiago Pedraz _ who issued the original April 27 indictment _ said in throwing out the prosecutors' appeal that the three Americans had used indiscriminate and excessive force when they opened fire at a hotel where many journalists were staying.

The blast killed Couso, a cameraman for the Spanish television network Telecinco, and Ukrainian cameraman Taras Portsyuk, who worked for Reuters.

A crime committed against a Spaniard abroad can be prosecuted here if it is not investigated in the country where it was allegedly committed

The three American soldiers were part of the U.S. 3rd Infantry, based in Fort Stewart, Ga.

After the incident, then-U.S. Secretary of State Colin Powell said American troops had been responding to hostile fire from the hotel. He said a U.S. review of the incident found the use of force was justified.

Pedraz said there was no evidence of a sniper or a spotter at the hotel, and that even if there had been a spotter, the firing of a tank shell would have been a devastating and disproportionate response.

"The collateral damage that would be produced was predictable, that is the death and injury of those staying at the hotel," Pedraz said.

Pedraz has issued several arrests warrants against the three soldiers, but the United States has said it would not hand them over.

The soldiers still run the risk of arrest under a Spanish-issued international warrant should they travel to any country that has an extradition accord with Spain.