PROSECUTOR FRANCINE LES FORGES had assembled two law clerks and her deputy prosecutor, Atavar Strinsky, in one of the conference rooms of the International Criminal Court building in The Hague, Netherlands.
On top of the long, blond-wood conference table, each person had a thick file.
Les Forges was talking quickly—in the staccato that typified her speech when she felt that a case was beginning to roll in her direction.
“So there’s no question,” she said, addressing Strinsky, “that Mexico has Caleb Marlowe, and that they have him securely detained pending our decision?”
Strinsky nodded soberly. “He was arrested by the federal security police. They have him in lockup in Mexico City. They are ready to fly him out under secure guard, but they’re waiting for the word from you.”
“Well, that’s not going to be a problem,” Les Forges answered. “I can get an extradition order. Immediately if necessary. We can have him on a plane headed here within forty-eight hours. But I had asked you to double-check the formal referral from Mexico for prosecution. Are you satisfied that we have a formal request for prosecution from the state party of Mexico—for the prosecution of Colonel Caleb Marlowe of the United States Marine Corps, special unit designation unknown, for war crimes or crimes against humanity or both?”
“I’ve looked over the referral from the Mexican president’s office. Everything’s in order. I don’t see any problems on that count.”
But then Strinsky wrinkled his brow, tapped his pen on the file in front of him, and spoke up again. “However, we do still have the two issues that we discussed previously—first, whether the substantive criminal provisions of the ICC truly fit the alleged crime he would be charged with. And second—the jurisdictional issue still has to be resolved.”
Les Forges rose to her feet, thrusting her hands into the pockets of her pinstriped pantsuit.
“Well, let’s take the easy question first. I gave all of you a memo on what I think the clear substantive crime is under the ICC article that applies here. It’s crystal clear. There is, to me, no ambiguity. A beautiful fit, don’t you think? Look at Article 8, Section 2 (b)(iv)—‘War Crime of Excessive Incidental Death to Civilians.’ Just look. Ladies and gentlemen, there it is. A beautiful and elegant correlation between Colonel Marlowe’s conduct as the superior officer, and the ICC Criminal Code.”
The female law clerk chimed in. “Yes, certainly on the first element, no question—‘the accused launched an attack’ as part of a military operation. Here we certainly have an attack on the house in Chacmool, Mexico, as part of a general military operation by the United States. And if I may say so, Ms. Les Forges, I believe that we have the second element of the crime also proven. I’ve pointed that out in my memo to you, do you recall?”
“Yes, yes. Wonderful work,” the prosecutor said effusively. “I had already reached the same conclusion, but your memo corroborated that. The second element is that the attack must cause death to civilians to such an extent as to be clearly excessive in relationship to ‘the concrete and direct overall military advantage anticipated.’ Now, this is where I think we have them…”
“Yes, because it was a covert operation, pursuing just a handful of terrorists…” the clerk added.
“Exactly,” the male law clerk said, joining in. “They expected only four terrorists or so, at best.”
“But what is the result?” Les Forges asked, her arms outstretched as she stood, holding court at the conference table. “The result is four dead civilians—an entire family—mother, father, and two little children. And here is where we can put that issue on trial—an issue that has international ramifications. Don’t you see? Don’t you see the implications of this?”
“Well,” Strinsky noted, “I do see some rather complicated implications, Francine. For instance, if you apply this standard to Colonel Marlowe’s mission, even though it obviously went wrong—tragically wrong—but if you say that the death of four civilians as a result of an attempt to kill four terrorists is excessive and disproportionate under Article 8 of the ICC Criminal Code, then aren’t you really placing under suspicion every similar attack in every war-torn nation? What about the Israeli Defense Force when they go into the Palestinian Authority chasing would-be terrorists?”
Les Forges smiled, placing her hands on the conference table and leaning toward Strinsky.
“It is time, Atavar, that universal norms of decency, and the international rule of law, must be brought to bear in these violent, bloodthirsty skirmishes around the world. People must be brought to account. Even great—even large, powerful bully nations like America. Even small bully nations like Israel.”
The room grew quiet, and the two law clerks shifted uncomfortably in their chairs.
“But enough of my speech-making,” Les Forges said with a laugh and brushed the hair from her eyes. “What about the third element—the crime of excessive civilian death—any thoughts?”
The female law clerk spoke up again. “This is clearly the most difficult element for us to prove.”
The other law clerk nodded in agreement as the female law clerk continued. “However, the third element is basically one of scienter—requiring proof that the accused would have had knowledge that civilian death was inevitable, and that it would be excessive compared to the anticipated benefits of the mission. Here, I think, we can adopt some other useful legal standards to make our point.”
“My thinking exactly,” the prosecutor responded. “This is an excellent test case. Can’t we argue to the trial tribunal that this is really a recklessness standard? We don’t have to prove that Marlowe actually knew how many civilians he was going to end up killing—or that those civilians would outnumber the terrorists likely to be killed. Rather, can we not simply show that he had a reckless disregard for how many civilians might die in the melee?”
The two law clerks nodded, but Strinsky was unconvinced. “Of course,” he pointed out, “no ICC case has adopted that recklessness standard.”
“But we have the taped communications between Marlowe and his unit—‘collateral damage’—remember?” She smiled and then sat back down at the conference table.
“So then, that brings us to the jurisdictional issue.”
“And of course, that’s an issue with a great deal of controversy around it,” Strinsky began. “As we all know, the Rome Statute only permits the ICC to prosecute Marlowe…”
As he spoke Strinsky fished into his thick file and pulled a section of Article I of the Rome Statute in front of him.
“The Rome Statute would only permit the ICC to prosecute him if we can show that the United States, after investigating Marlowe, decided not to prosecute him—”
“And we can clearly show that,” the female law clerk added. “The military court-martial was never convened. The convening authority at Quantico, after reviewing the preliminary hearing testimony, unilaterally dismissed the prosecution.”
“But we have to show something else,” Strinsky continued. “We have to show that the decision by the United States military not to prosecute resulted from the ‘unwillingness or inability to do what was required.’ So in other words, we have to show that the United States Marine Corps, in declining to prosecute Colonel Marlowe, was really not making an honest, genuine effort to consider the evidence regarding his actions.”
Francine Les Forges did not respond immediately. But she broke into a broad smile and folded her hands calmly in front of her on the conference table. Then she cocked her head and, looking at Atavar Strinsky, finally spoke.
“And what do you think the response will be from the ICC judges on that issue? They will believe—as I do—that an American military court that exonerates its own decorated military hero without even referring the matter to a general court-martial—that such actions do not represent a serious consideration of prosecution.”
Les Forges paused and then added one final thought.
“Foxes may be allowed to guard the chicken coop in the United States—but not here at the ICC.”