A Far Justice (23 page)

“Weather was a factor,” Armiston said.

“I take it that means ‘yes.’ How did the accident investigation board learn of these two incidents?”

“Tyler told them.”

“Were you under his command at the time of the incidents?”

Armiston snorted. “I was never under his command. We were both lieutenant colonels and assigned to the same wing. I was the chief of plans and Tyler was a squadron commander. I only flew with his squadron to maintain flying proficiency.”

“What were the results of the Flight Evaluation Board the accident board recommended be convened to determine your suitability to continue flying?”

“It was never held.”

Hank opened his leather folder and pulled out two documents. “Why?”

“I was reassigned to AFMC, Air Force Material Command, and the commander ruled there was no need to convene a flight evaluation board.”

“Was the commander of AFMC related to you in any way?”

“He was my father-in-law’s brother.”

Hank nodded and returned the documents to the folder. “Defense enters the Accident Report as defense exhibit five.”

There was no objection from Denise, and Bouchard checked with Richter and Della Sante before ruling. “So entered.”

Hank turned away from the podium as if he were finished. He stopped and opened his leather folder. “I do have one last question. Besides the accident and the two landing incidents, are there any other blemishes on your record?”

“I served with distinction throughout my career.”

Hank closed the folder. “I take it that means ‘no.’” His voice was heavy with contempt. He sat down.

“Your witness, Madam Prosecutor,” Bouchard said.

Denise stood. “The prosecution has no further questions.”

“Smart move,” Hank said, sotto voce, as he stood. “The defense has no further questions at this time but reserves the right to recall the witness.”

Bouchard declared a recess for lunch. “Well,” Hank told Aly, “we now know why the good General is testifying.”

“We do?”

The moment the judges were out of the room, Hank turned to Catherine. “Get to Marci and blow the whistle on Armiston.”

“Will do,” she said, pushing her way through the crowd.

“Aly, notify the Victims and Witnesses Unit that we will recall Armiston to the stand the same day as Secretary Katelhong.” He gave a disgusted snort.

Marci looked into the camera. “General Armiston was the second witness who fared badly under cross-examination by Hank Sutherland.” She turned to Catherine and tipped the microphone in her direction. “Is this trial turning in favor of Gus Tyler?”

“I wouldn’t say that,” Catherine replied. “The prosecution needed Armiston to prove that Gus disregarded the rules of engagement. However, Hank cast doubt on his credibility and the judges saw quite clearly why Armiston was willing to testify. He is tying up the loose ends in his past that could seriously hurt his upcoming bid for the presidency.”

“And that loose end is Gus Tyler,” Marci added.

“Exactly. A conviction will discredit the man who questioned his competence as a pilot and his integrity as an officer.”

Gus was back in the dock waiting for the afternoon session and motioned for Hank to come over. “What’s up?” the lawyer asked.

“There are five or six women in the audience who keep looking at me and smiling. I think one’s flirting.”

Hank looked and saw a group of attractive women ranging in age from their mid thirties to early fifties. “The ones down front on the left?”

“That’s them. It’s getting embarrassing.”

Hank chuckled. “Courtroom groupies. Maybe we’re doing something right. Don’t worry about it but I’ll get Cathy’s take.”

“Should I smile back?”

“A little nod of recognition wouldn’t hurt.”

“How’s it going today?”

“So far, pretty good. Du Milan needed Armiston to show you didn’t follow the rules. That backfired. I expect she’ll trot out a few weapons experts to testify why CBUs are prohibited. She has three big problems. She has to prove civilians were in the convoy, you knew it, and that Reiss’s buddy, Hassan Ghamby, was indeed killed there. So far, the court only has Reiss’s uncorroborated testimony on that.”

“What about Toby?”

The red light on the clerk’s table blinked. “He’s still caught in the Sudan and can’t get here to testify, but Du Milan will try to get his statement read into evidence.” He returned to his seat as the judges trooped in.

The afternoon unfolded much as Hank had predicted. Denise first called a French doctor who had reached the convoy within hours after the attack. He testified that he had treated many casualties dressed in civilian clothes, including three women. Later, he worked in a mortuary to help establish identifications. Based on a bracelet, one of the bodies was identified as Hassan Ghamby. The photos he produced were extremely grisly and admitted into evidence. On cross-examination, Hank asked the doctor if he could identify the exact body in the photographs that had been wearing the bracelet. The doctor replied that he couldn’t be certain, as it was so long ago. “So it could have been found on the body of a soldier,” Hank said.

“Then why were they dressed as civilians?” the doctor asked.

“They’re called looters and deserters,” Hank replied.

Denise next called a witness claiming to be an expert on weapons of mass destruction. Roger Marks was a nondescript Englishman with thinning blond hair, and paunchy from lack of exercise. He swelled with importance as Denise led him through the standard opening questions, establishing his bona fides as an expert witness who had been in Kuwait during the Gulf War examining weapons effects.

At first, Hank dismissed him as a puffed-up martinet. Then he caught it. Roger Marks was a man filled with resentment at the world for not recognizing his worth and rewarding him accordingly. It didn’t matter that what the world saw was mediocrity with a mini cassette recorder. Marks wanted his fifteen minutes of fame and this was his chance. He grew with self-importance as he lectured the court on CBUs, and concluded by claiming that the weapon was designed to cause unnecessary suffering and injury, and in violation of the international law of armed conflict and the Geneva Conventions.

Satisfied, Denise ended Marks’s testimony by having him read the list of prohibited weapons in the annex to the Rome Statute, which included CBUs.”

Hank opened his cross-examination by asking “Were CBUs listed as a prohibited weapon in the annex in February of 1991?” Marks replied that the annex did not exist in 1991. Hank looked puzzled. “So a pilot dropping CBUs in 1991 had no way of knowing he was employing a weapon that would be prohibited in the future.”

“He should have!” Marks blurted. Laughter rippled across the courtroom.

Hank shook his head and gave Marks a patronizing look. “The defense has no further questions for this witness at this time but reserve the right to recall him later.” Denise wisely declined redirect and Marks gratefully escaped. Hank handed the clerk a familiar blue-covered petition. “At this time, we respectfully request the court to dismiss the charge of employing prohibited weapons.”

“Court procedures require such petitions to be submitted at the beginning of the day’s session,” Bouchard told him.

“I beg the court’s indulgence,” Hank replied. “It is submitted for the sake of efficiency.”

“And the basis for your petition?” Bouchard asked.

“
Ratione temporis
,” Hank answered. “The prohibition of retroactive crimes and punishments is fundamental to all human rights laws. Further, Article Twenty-two of the Statute specifically states that a person cannot be held criminally responsible by the court for a crime that was not prohibited at the time it took place.”

Denise stood, fuming with anger. “This a waste of the court’s time. The court has ruled previously ruled on this very issue and now the learned counsel for the defense is asking the court to reverse itself. Further, the standard adopted by the European Court of Human rights with respect to prosecuting crimes not prohibited at the time is that they must be foreseeable as being such.”

Hank knew he was spinning his wheels but he was determined to keep battering at the court and ratcheting up the pressure on Bouchard. “And now the court has before it a specific instance to measure that standard against. Further, I would like to remind the court that Article Eleven limits the court’s jurisdiction to …”

Bouchard rapped his gavel and interrupted. “Learned counsel for the defense will not lecture the court on the Statute. However, the court will take your petition under advisement. We are adjourned until tomorrow morning at ten o’clock.”

Chrestien glared at the offending TV. He grabbed the remote control and flicked it off. “The bitch,” he muttered.

Denise padded out of her kitchenette with a large bowl of ice cream. She cuddled beside him on the couch, her bare legs curled up. “The wretched Marci Lennox?”

“Of course. I want to see her reaction tomorrow.”

“Chrestien, I don’t want to do it.”

He stroked her thigh, sensing something was wrong. Was he losing control of his wife? That was the one thing he could not tolerate. “It’s your last chance to muzzle Sutherland before he presents his case.”

“It’s wrong.”

He squeezed her thigh. Hard. “Don’t be stupid.”

Gus stretched out on his bunk after Derwent left, his fingers intertwined behind his head as he listened to the soft night sounds of the prison. A soft moaning from down the corridor drifted under the door and blended with faint aftermath of the psychiatrist’s perfume. Scent and sound blended as the sleeping pill started to work.

Clare nudged him. “Okay, what’s bothering you?” He blinked, coming awake. Clare was in bed, fresh from a scented bubble bath. “You were moaning,” she told him. “Something’s been bothering you all evening.” He reached out and she cuddled in his arms, her head against his chest. “Jason will be alright. You got his attention. Wendy’s folks aren’t going to do anything.” Wendy’s father had caught Jason and her in bed. Gus gave a little nod. “I didn’t know she was eighteen,” Clare said. “My God, Jason’s only fourteen. What was she thinking of?” Gus let her talk. “It’s Armiston,” he finally admitted. “I can’t let him fly the jet. He’s too damn dangerous. Head up and locked most of the time.” Her hand sneaked up his chest and caressed his cheek. “Do what you have to do.” Her left leg wrapped around his right knee and she cuddled closer. “Pay attention,” she ordered.

TWENTY-FIVE

The Hague

Hank studied Bouchard as he sat down and convened day nine of the trial.
“Now there’s a man with a mission,” he told Aly.

“Is that good news?” she asked.

“Not for us.”

“Good morning,” Bouchard began. “The court has reviewed defense counsel’s petition to dismiss the charge of using prohibited weapons under the provisions of Article Eleven and Twenty-two. The court finds no substantive reason to reverse its prior ruling. Further, the consensus of the court is that the widespread and indiscriminate effects of cluster bomb units were well known to all at the time of employment. Therefore, the standard adopted by the European Court of Human Rights that their eventual prohibition could have been logically foreseen applies. Petition denied.”

Applause broke out in the courtroom, and Aly held onto Hank’s hand. “Why am I not surprised,” he said sotto voce.

Bouchard ignored the disturbance but Gus looked at the audience and made a dampening motion with his right hand, urging them to stop. They did and he gave them a nod in thanks. “Before we proceed,” Bouchard said, “are there other issues for the court to consider?”

Denise stood. “If it may please the court, there is a petition for your consideration. As the court is aware, the Republic of Iraq has recently joined our ranks. We have received a petition from the president of Iraq requesting that the defendant be transferred to their custody upon termination of this trial.”

“What is the purpose of such a transfer?” Bouchard asked.

“For the defendant to be held for trial in another matter. It is their contention that he bombed civilian vehicles lost in the desert at a time and place other than Mutlah Ridge.”

“We know where that came from,” Hank said as he came to his feet. “Your Honors, Iraq has the death penalty, which the Statute specifically prohibits. To extradite Mr. Tyler would subject him to Koranic law and certain execution.”

The flicker of a smile crossed Bouchard’s lips. “The court does not ‘extradite’ but ‘transfers.’” The flicker turned into a self-satisfied look. It was payback time. “Further, Article Eighty of the Statute, which addresses the penalties of which you speak, clearly states that ‘Nothing in this Part affects the national application by States of penalties prescribed by their national law.’ However, we will take the prosecutor’s petition under review.”

Cassandra spoke in Hank’s ear. “We didn’t see that one coming. Sorry.”

“Neither did I,” Hank admitted.

“Madam Prosecutor,” Bouchard intoned, “please call your next witness.”

Denise came to the podium. “It is our intention to call the Reverend Tobias Person as a witness. Unfortunately, Reverend Person is currently in the southern Sudan at his mission where there is a great deal of unrest and fighting. Consequently, the Victims and Witnesses Protection Unit has determined that any travel at this time would endanger Reverend Person’s security and very life. Therefore, the prosecution calls Watban Hamza Horan.”

Cassandra was there for Hank, her voice urgent. “Horan is not on the witness list. He’s a Palestinian lawyer who works for the court and does official translations.”

“Objection,” Hank called, coming to his feet. “There is no Watban Horan on the witness list.”

“Monsieur Horan,” Denise replied, “is not a witness but an officer of the court. It is in that capacity that he is entering a sworn statement by Tobias Person into evidence.”

“Your Honor,” Hank protested, “the defendant has the right to examine all witnesses against him. We cannot cross-examine a statement. Further, as we have called the Reverend Tobias Person as a witness for the defense, to admit such a statement, without examination by the defense, is highly prejudicial to the defendant.”

Bouchard was in his element. “I’m quite sure defense counsel is aware of Article Sixty-eight that requires the court to take appropriate measures to protect the safety of all witnesses. To that end, the court may allow the presentation of evidence by electronic or other special means.”

Hank kept hammering away. “Need I remind the court that Article Sixty-eight is primarily concerned with crimes involving sexual, gender, or violence against children?”

Denise stood. “But not limited to,” she added, quickly sitting down. Bouchard turned to Della Sante and then Richter. Both nodded.

“They owe him on this one,” Hank murmured to Aly.

“Overruled,” Bouchard said.

“Your Honor,” Hank said, “We need to confer for a moment.” Bouchard granted his request and Hank quickly explained to Gus what was going to happen and what he wanted Gus to do. He returned to his seat.

A strange little man entered the side door. He appeared to be in his late fifties, rotund, and with wisps of gray hair sprouting from his balding head like clumps of crabgrass. He recited the undertaking to tell the truth in French and spoke in full and resonant tones worthy of a Shakespearian actor. Denise spoke in French and went through the introductory routine. She established that Horan did not speak English, had traveled to the Sudan with a clerk of the court, and taken a sworn statement from Tobias Person. The clerk handed Horan a thin document to read. Horan turned to the first page and started to read in French.

Gus was on his feet. “Your Honor, Toby doesn’t speak French.”

“What’s he doing?” Aly whispered.

“We’re going through the backdoor on this one,” Hank replied in a low voice.

“You can listen to an official translation,” Bouchard said. “A headset is beside your chair.”

“I speak French,” Gus said.

“Please be seated,” Bouchard said. Gus didn’t move. “Sit down.” Gus refused to move and Bouchard’s face turned bright red. “The defendant is out of order. Counsel, tell the defendant to sit down.” A murmur worked through the spectators.

“Your Honor,” Gus said, “you mentioned ‘other electronic means.’ Why can’t the court contact Toby by satellite phone?”

Now it was Hank’s turn. “Defense will not object to the Reverend Person testifying by satellite relay or radio.”

Denise turned to Gus. “The prosecution tried to establish contact as recently as this morning but all communications are cut off. Given the current situation in the area, we do not foresee contact being established in the foreseeable future.”
Bouchard conferred with Richter and Della Sante. “The court will hear the statement,” he announced.

Gus sat down as Hank donned his headset. He half-listened, waiting for the telling part he knew was coming. Horan read with dramatic intensity but the translator’s voice was flat and without emotion.

“Question: Were you flying with Captain August Tyler when you attacked the convoy on Mutlah Ridge?

“Person: Gus Tyler was my nose gunner, and one great pilot.

“Question: Was it your intention to attack the convoy?

“Person: That’s why we were there.

“Question: What weapons did you use?

“Person: Snake Eyes, that’s a 500-pound bomb, and CBUs.

“Question: Are these Snake Eyes or CBUs precision weapons?

“Person: Absolutely not. That’s why we called them dumb bombs.

“Question: Were you aware that civilians were in the convoy?

“Person: Absolutely.

“Question: Did you take all reasonable precautions to minimize civilian losses?

“Person: Well, we were preoccupied at that particular moment.

“Question: Were you aware that civilians are protected by the Geneva Convention?

“Person: We were all briefed on the Geneva Conventions.”

Horan finished reading the statement and an expectant hush fell over the courtroom as Denise adjusted her reading glasses and turned a page of her notebook.

“Do you affirm that the statement by Tobias Person is complete and unabridged?”

“I so affirm,” Horan intoned in French.

Denise looked over her glasses at Hank. “The statement is entered as prosecution exhibit two hundred and fifty-three.” Every head turned to hear Hank’s objection.

Hank came to his feet as Cassandra whispered that there was no way the judges would sustain any objection against admitting the statement. Hank bit the bullet. “The defense has no objection to the statement, as read by Mr. Horan, being entered into evidence.”

“So entered,” Bouchard intoned with finality.

Denise turned to the judges, and bowed her head. “If it may please the court, the prosecution rests.” She sat down as Horan stood to leave the stand.

Hank came to his feet. “Please, sir, the defense has some questions.” Horan looked at him, uncomprehending. Hank gave him an encouraging look. “It is traditional, you know.”

Bouchard rapped his gavel. “As the statement was taken by an officer of the court, and it is complete and unaltered, the statement speaks for itself.”

“Your Honor, it is not the statement, as read, that is under question. That is why the defense had no objection to it being entered into evidence. However, the circumstances surrounding it require clarification.”

Della Sante, obviously upset, dominated the conversation as the three judges conferred. A decision was reached. “We will allow some clarification but nothing else,” Bouchard announced.

Horan sat down, a very unhappy man. Denise had assured him that as an officer of the court, he would not be subject to cross-examination. He donned a headset. “Mr. Horan, do you speak any English at all?” Hank asked. Horan listened to the translation and answered in French, saying that he did not speak English. “In what language did you conduct the interview?” Again, they went through the process and Horan said that the interview was conducted in Arabic as the Reverend Person was very fluent in Arabic and did not speak French.

“Was the interview taken down in shorthand or recorded electronically?” Horan replied that the clerk, who did not speak Arabic, recorded it. He then translated the recording into French as the clerk replayed it. The same clerk then typed the hardcopy that was read in court.

“Did you ever have possession of the original disk?” Horan replied that the disk had been in possession of the clerk and that he had never touched it. Hank turned to the bench. “Given the importance of Reverend Person’s statement, and as it has been entered into evidence, it is only fair and reasonable that the original recording be submitted to an impartial panel of translators appointed by the court to authenticate Mr. Horan’s translation.”

The judges again conferred for a moment. “The court agrees,” Bouchard said. “The original recording will be surrendered to the court.”

Horan glanced nervously at Denise. He spoke in French and the translator repeated his words in English. “The clerk had the disk but we can’t find it.”

Hank let his disgust show. “Your Honor, please direct the clerk to produce the disk.”

A burst of French exploded from Horan, and Gus threw up his hands in frustration. A low din swept across the courtroom even before the translator was finished. “We can’t do that because she is dead. That’s why we can’t find the disk.”

Cassandra’s voice was almost drowned out in the hubbub. “Call for an adjournment. Ammo is on the way.”

Hank was incredulous. “Do I understand that the clerk was Marie Doorn?”

“That is correct,” Denise said.

“Your Honor,” Hank shouted in the uproar sweeping the room, “the defense requests an immediate adjournment.”

“We are adjourned until tomorrow morning at ten o’clock,” Bouchard said.

Everyone stood. “So it was Marie they were after,” Hank said in a low voice to Denise. “Not me or Melwin.”

“I can’t believe that,” Denise protested.

“Just how much coincidence do you believe in?”

New York

It was a trans-Atlantic roundtable discussion with Liz Gordon in CNC-TV’s New York studio and Marci Lennox in the ICC’s studio in The Hague. “Marci,” Liz said, “it looks like total chaos from here. What is going on?”

“It’s a war zone over here,” Marci began. “First, there was the bombshell when Iraq demanded the ICC transfer Colonel Tyler to their custody to be tried on an unrelated charge of bombing a civilian bus during an unauthorized mission in the desert. The court has yet to rule on that. Then there was controversy over the Reverend Person’s statement that clearly states Colonel Tyler knew they were attacking civilians in the convoy. This is the prosecutor’s smoking gun that can convict the Colonel.”

“Will Sutherland be able to get it thrown out?”

“I think,” Marci replied, “that it all depends if they can find the original disk.”

“The prosecution has rested its case. So what can we expect from Sutherland?”

“There is some confusion as Horan is still on the stand. We don’t know which of his witnesses Sutherland will call, but everyone is waiting to see if Colonel Tyler will testify.”

“How well is Sutherland doing so far?” Liz asked.

“On the face of it, very well. So far, he’s managed to cast doubt on every aspect of the case and totally discredited two of the prosecution’s main witnesses. What he will do with Horan and Person’s statement remains to be seen. The ICC tries to blend two legal systems, the European accusatorial system and our adversarial system. The judges are not used to a situation where a skilled and aggressive lawyer can drive the court and take control away from a weak judge.”