A Far Justice (22 page)

TWENTY-FOUR

The Hague

Aly stood at the defense table arranging the folders for the day’s trial.
She was wearing a clerk’s plain back robe and would be sitting next to Hank. She walked over to Gus when he took his place in the dock. “I’m glad you’re here,” he told her.

“It was Hank’s idea,” she said. “And I wanted to do it.”

“Every friendly face helps.”

The red light on the clerk’s table blinked and she hurried back to the table and stood beside Hank for the opening processional. When the court was called to order, Bouchard cleared his throat. “On examination of defense counsel’s petition to dismiss, the court must rely on Article Thirty-two of the Rome Statute that states ‘A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the court shall not be a ground for excluding criminal responsibility.’ The court finds that the date in the prosecutor’s original petition is a minor mistake of law that does not negate the jurisdiction of the court nor criminal responsibility. Petition denied.”

“Why am I not surprised?” Hank said in a loud voice.

“What does it mean?” Aly asked.

“It means,” he replied in a stage whisper that carried over the room, “that the court can prosecute whoever it damn well pleases.” He came to his feet. “Your Honors, I am deeply concerned by the court’s interpretation of Article Thirty-two which concerns the mental element required by the crime in question.”

“Counsel is referring to the first paragraph of Article Thirty-two,” Bouchard snapped. “The court is relying on the second paragraph, which addresses particular types of conduct and the court’s jurisdiction.”

“Your Honor, Article Thirty-two does not give the court an unrestricted license to hunt for targets of opportunity.”

“You will come to order,” Bouchard replied, his anger barely in control.

“As soon as the court comes to justice,” Hank muttered as he sat down.

“Why are you antagonizing him?” Aly whispered.

“When all else fails, get obnoxious.”

Denise stood. “If it may please the court.” Bouchard breathed in relief as he recognized her. “May we move beyond this? As you know, the Republic of Iraq has ratified the Rome Statute, becoming the one hundredth and twelfth nation to become a member of the International Criminal Court. The office of the prosecutor welcomes Iraq on this momentous occasion.”

“If I may speak for the court,” Bouchard replied, “this chamber also welcomes Iraq as it joins in the march to universal justice.” He cleared his throat. “If there is no further business, you may call your next witness.”

“The prosecution calls General Davis Armiston.”

“I was hoping I’d scared him away,” Hank told Aly. She handed him the folder on Armiston. “Now it gets interesting.” He split his attention, listening to Denise lead Armiston through the standard questions as he reviewed the folder. At the same time, Cassandra spoke in his ear, providing an up-to-the-moment legal analysis by her team of lawyers. Denise’s questions took an unexpected turn when she asked Armiston about cluster bomb units.

“I served as the commander of the Air Armament Center at Eglin Air Force Base in Florida,” Armiston replied, “and was responsible for the testing, development, and sustainment of all air-delivered munitions employed by the Air Force.”

“How would you describe the weapons effects of CBU-58s as employed on Mutlah Ridge?”

“It’s a wide-area denial weapon to be used on enemy troops and soft targets caught in the open.”

“You referred to CBUs as ‘wide-area.’ Does that mean they are indiscriminate in nature?”

“CBUs are not target selective,” he replied.

“So anyone caught in the open, civilian or military, will be killed.”

“Given the nature of shrapnel, they are just as likely to be wounded.”

“Isn’t it more desirable to kill the enemy than wound him?”

“Just the opposite. A wounded man or woman takes more care than a dead one, and that consumes resources and personnel. Further, you must take care of your wounded or it adversely affects morale.”

“Then militarily, it is more desirable to cause widespread harm and suffering than outright death.”

“That is the nature of warfare.”

“Moving on, you served in the Gulf War of 1991 with the defendant. Did you know there were civilians in the areas you were attacking?”

“It was common knowledge that civilians were in the area.”

“Were these civilians warned about impending bombardments?”

“I never heard anything about that.”

“Did you participate in the attack on Mutlah Ridge?”

“No. I was in crew rest in my quarters.”

“Do you know who flew the aircraft that initially attacked the convoy?”

Hank was on his feet. “Objection. Hearsay. The witness has already testified he was in crew rest.”

“Overruled,” Bouchard said. “The witness’s testimony is both relevant and compelling.”

“And could have been overheard in a bar,” Hank replied.

“The witness will answer the question,” Bouchard said.

Armiston’s face turned sad. “August William Tyler.”

“General Armiston,” Denise continued. “What kind of pilot was the defendant?”

“Actually a very good pilot. But he tended to be a bit of a cowboy.”

“Please explain.”

“He was too aggressive and disregarded the rules of engagement. Once he attacked a convoy he found outside his assigned area without authorization.”

Hank objected but, as expected, Bouchard overruled him.

“What type of convoy?” Denise asked.

“It was probably carrying a Scud missile.”

“Probably?” Denise asked.

“Photo reconnaissance could only confirm the presence of a fueling truck, a few support vehicles, wreckage that could have been the missile carrier, and a bus.”

“But no missile?”

“It probably blew up.”

“Probably. You mentioned a bus. What was it doing there?”

“Probably carrying the support crew.”

“Could it have been carrying civilians?”

Hank was on his feet. “Objection. The witness has no direct knowledge of who was on the bus.”

“Learned counsel is correct,” Denise said. “I withdraw the question. I have no further questions. Thank you, General Armiston.” She looked at Hank with anticipation and sat down.

“We were just sandbagged,” Hank murmured to Aly. He stood and walked to the podium his head bowed, deep in thought. Slowly, he raised his head. “Where’s …” He waited for a reaction.

“Henri?” a woman called from the back of the audience.

Bouchard rapped his gavel. “Another outburst from the spectators and I will order the visitor’s gallery cleared.”

Hank looked puzzled. “Your Honor, there have been many much louder outbursts from the audience without a reprimand from the bench. Does your warning apply to all outbursts or only those outbursts for the defense?”

“I am tired of your sarcasm, Monsieur Sutherland, and will not tolerate it.”

“It is a valid observation, your Honor.”

Bouchard rapped his gavel. “Proceed with your questioning.”

Hank placed his unopened leather folder on the podium. “Good morning, General.”

“Good morning, Hank.”

“General Armiston, you testified you were in crew rest the night of the mission on Mutlah Ridge. If ordered, would you have flown it?”

“Of course. But my reaction would have been different. I would have overflown the convoy and radioed back what I had observed.”

“And if then ordered to attack?”

“I would have called for a flare ship to illuminate the convoy and then only employed my weapons if I could clearly identify it as a military convoy.”

Gus motioned Hank over to the dock and spoke in a low voice. Hank nodded and returned to the podium. “General, the flare aircraft you referred to were slow moving AC-130 gunships, which are limited in their ability to maneuver. Because of the high threat from surface-to-air missiles and anti-aircraft artillery batteries, they were prohibited from operating in that area. Lacking such illumination, would you have attacked or allowed the vehicles to escape?”

Denise was on her feet. “Your Honor, this is all hypothetical and of no value as the witness was not there.”

“Move on, counselor,” Bouchard ordered.

“Is it any wonder he was in crew rest?” Hank asked, sotto voce. “General, did the Iraqis use civilian buses to transport soldiers in the Gulf War?”

“Of course.”

“Would a bus traveling with a military target be subject to attack?”

“Under most circumstances, yes. But in this case, the convoy Captain Tyler attacked was out of his area of operations, and he had not received authorization to engage the enemy or employ his ordnance.”

There was no objection from Denise about Armiston’s use of Gus’s military rank so Hank ran with it, eager to validate Gus’s military standing. “So the then Captain, later Colonel, Tyler should have let the Scud missile escape into the desert.”

“A suspected Scud missile,” Armiston said. “Bomb damage assessment never confirmed there was a missile on the TEL.”

“General, when you flew combat missions in the Gulf War, did you attack vehicles?” Armiston confirmed that he had. “Did you always know exactly what the vehicle was?”

“I always had a high degree of confidence that it was a valid target or I would not have employed my ordinance.”

“Then you trusted the targets had been properly validated by your commanders.”

“That’s correct.”

“Did you ever employ CBUs?”

“Of course.”

“Did you then, or as the commander of the Air Armament Center consider them a weapon of mass destruction?”

“The issue was never raised.”

“I see. Did it ever occur to you that it could be an issue?”

“I never thought about it.”

“General, why are you here?”

“Objection,” Denise called.

“The question goes to motivation,” Hank replied.

Bouchard glanced at Richter and Della Sante who nodded. “The witness may answer the question.”

“As I had served as the Supreme Allied Commander, Europe, it was an obligation I could not ignore.”

“And it is not personal in anyway?”

“Of course not.”

Hank walked to the defense table and Aly handed him a thick document printed on oversized paper with a green cover. He handed it to the clerk who passed it to Armiston. “General, do you recognize this document?”

Armiston threw a quick look at Denise. “It’s a US Air Force accident investigation report.”

“Are you the pilot named in this report?”

Denise was on her feet. “Objection. The report is for official use only. Further, this court cannot verify the authenticity of the report. Therefore, it has little probative value.”

“Sustained,” Bouchard said.

Richter cleared his throat for attention. “The defendant’s personnel records were also classified ‘for official use only.’ Yet they were allowed into evidence.”

“The source of those records,” Denise replied, “was in court and was cross-examined as to their accuracy.”

Richter stared at her, appalled by her reasoning. “Need I remind the prosecutor that the subject of this accident report is on the stand, and subject to your examination? It is my opinion that the accident report be allowed.”

“And mine,” Della Sante said.

Bouchard was stunned. He had just been overruled in open court. “So ruled.” The words almost choked him.

Hank turned to Armiston. “Please read the highlighted passages on the marked pages.”

Armiston’s face flushed as he read. “Findings: the primary cause of the accident was an induced compressor stall caused by the pilot when he cross-controlled the aircraft on final approach. Further, the pilot did not immediately institute the correct emergency procedures which could have averted the resulting crash.” He turned the page. “Recommendations: subparagraph four. As investigation revealed that the pilot was involved in two earlier aircraft incidents, the Board recommends a Flight Evaluation Board be convened to evaluate the pilot’s suitability to remain on flying status.”

“What was the first incident?” Hank asked.

“I don’t remember.”

“You’ll find it in Annex C, page C-12. Will you please read the highlighted passage?”

Armiston closed the report and handed it to the clerk. “Apparently not,” Hank said. “Is it true that the first incident occurred when you attempted an approach into Ramstein Air Base, Germany, but landed on a nearby autobahn?”

“Yes, but …”

Hank looked at him expectantly. Armiston shook his head, reluctant to say more. “Is it true the second incident occurred when you became lost flying a low level mission over Germany and had to make an emergency landing at Frankfurt Airport where you flamed out for fuel starvation on the runway, closing the runway and causing sixteen civilian airliners to divert to alternate airfields?”