“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?”
“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.”
A Far Justice Page 21
