“ALL RISE FOR THE SOLEMN PROCEEDINGS of the International Criminal Court, which is now in session. The trial session in the matter of Colonel Caleb Marlowe, United States of America, accused, shall commence. His Honor Alexei Korlov, of the member nation of Russia, shall sit as the Presiding Judge.”
A heavy-set man in his late fifties with curly gray hair and bushy eyebrows, Korlov ambled into the courtroom in red judicial robes. He nodded to the members of the court. The next judge who was announced was Hans Brucker of Germany, Associate Judge. Last was Associate Judge Jean René Ponti of France. As the judges sat down simultaneously, so did the lawyers and spectators.
Counsel on both sides were introduced to the court, and each of the lawyers hooked on earpieces.
The first order of business was a consent agreement between the prosecution and the defense for the case to be tried in closed session due to the specialized intelligence concerns of the issues involved. Judge Korlov instructed all onlookers, members of the media, and noncourt personnel to leave the courtroom.
When the courtroom had emptied, the guards locked the doors, and the Presiding Judge administered a “Solemn Declaration” to all of the court personnel, including the court reporters and the interpreters behind the glass wall, by which they promised to maintain absolute secrecy regarding the conduct of the proceedings.
Korlov noted one preliminary matter that needed to be argued—the defense motion to dismiss—on the grounds that the ICC lacked jurisdiction to try Caleb Marlowe.
Len Redgrove strode up to the podium and opened his blue notebook containing an outline of his arguments and applicable sections of international law.
However, it did not surprise Will that, during his co-counsel’s brilliant argument, he never looked down at his notes, but spoke directly and eloquently to the three judges.
Redgrove’s argument went to the heart of the alleged jurisdiction of the ICC in matters where a UN member state, like the United States, had already determined that an accused should not be prosecuted.
“The issue,” he noted, “revolves primarily around Article 17(1)(b). That section indicates that where a case has been investigated by a state—like the United States—which has jurisdiction over the matter, and the state has decided not to prosecute the person concerned—here Colonel Caleb Marlowe, who was investigated at Quantico Marine Base in Virginia by the United States military—in that event such a case, before this tribunal, is to be determined ‘inadmissible,’ and this tribunal is to have no jurisdiction. There is only one exception that pertains to this case.”
Redgrove stepped to the side from the podium and gestured, stretching his arms out toward the three judges.
“That exception has two parts,” he continued. “This court can proceed only if it can show that the decision by the United States military not to refer Colonel Marlowe to a full court-martial trial was a decision that resulted, for the first reason, from the unwillingness of the United States to genuinely prosecute Caleb Marlowe—” and with that Redgrove raised the index finger of his right hand into the air.
“And the second reason for exception,” he noted, “is that the United States’ failure to genuinely prosecute Caleb Marlowe was a result of its inability to do so under American law,” and with that, he raised the index finger of his left hand.
With both fingers pointed in front of him like the horns of a steer, Redgrove declared, “This court finds itself on the horns of that dilemma. Because it can neither prove that the United States was unwilling to prosecute—indeed, the United States went through a full Article 32 hearing and fully investigated the potential crime of murder against Colonel Marlowe. Nor can this court find that the United States was unable to put forth a genuine effort of prosecution. The United States made an able, competent, and vigorous prosecution of Colonel Marlowe. The mere fact that a defendant is acquitted, or the charges are dismissed, or prosecution does not continue—does not mean that the state is ‘unwilling’ or ‘unable’ to genuinely prosecute.”
Returning to the podium, Redgrove closed his notebook and glanced up at the three judges.
“Your Honors, shall the world believe that this court has arrogated to itself such power that it will overrule, at will, any decision of any nation simply because the internal decision of that nation’s court does not mirror the legal philosophy of this body? I trust and hope not.”
Judge Ponti of France was the first to respond.
“Monsieur Redgrove, I have read your law-review articles and some of your speeches in which you bitterly criticize the founding and the creation of the ICC. It seems to me that your argument implies that the legitimacy of this court is still a matter to be debated. Do you concede that this court, and the provisions of the Rome Statute, are a matter of legitimate, binding international law?”
Redgrove paused—but only for a second.
“Your Honor, this tribunal exists. This building, and its personnel, and the armed bailiffs in this courtroom, are not fantasy, but reality. I do not question the existence of this court or its legitimacy—at least in the eyes of those nation–states that have signed the Rome Statute. I simply wish to remind you that some nations—like the United States of America—have not signed on to the Rome Statute and do not formally recognize the ICC. That also is a reality as firm as the stones of this building, and as real as the armed bailiffs in this courtroom.”
Judge Brucker of Germany drew Redgrove’s attention to Rule 12, which stated that “determinations of courts of any state are not binding on the Tribunal.”
“Doesn’t that tell you, Professor Redgrove, that the decision of the United States military not to prosecute Colonel Marlowe is not necessarily binding on this tribunal? That we are free to disregard the investigation by the American military?”
Redgrove agreed, but suggested that Rule 12 had to be interpreted in conjunction with the principle of complementarity outlined in the preamble of the Rome Statute.
After the professor had concluded his presentation, prosecutor Les Forges made her argument short and to the point.
“Can we trust the military of a nation to effectively pass judgment on soldiers of its own military when innocent civilians have been slain, but the military chooses not to act?”
Les Forges likened the United States military deciding not to court-martial Colonel Marlowe to the Nazi judges during World War II Germany, whose allegiance to the regime transcended allegiance to international norms of humanity, decency, or justice.
At this, the lawyer from the U.S. Solicitor General’s office sat up straight in his seat—and Redgrove strode boldly to the podium, waving his hands.
“I exercise the right to object—to move to strike that scurrilous and obscene argument by the prosecution that likens the United States of America to Nazi Germany. That argument has no place in any judicial setting without proof…which this prosecutor, I submit, has none!” he thundered.
Judge Korlov slapped both hands down on the bench and barked a command in Russian, which, after a few seconds’ lapse for translation, became clear to the American team. Korlov was threatening Redgrove with contempt of tribunal if he interrupted any further portion of the prosecution’s argument on the motion to dismiss. The professor shook his head and resumed his seat next to Will.
Les Forges smiled coyly and made her last appeal. It was a clever one.
She suggested that the American government would actually be better served by a full prosecution under the ICC so that—in the eyes of the world, one way or the other—the world community would feel confident justice had been done, and the Chacmool incident could be, at last, put to rest.
“If the Americans believe in the innocence of their United States Marine Corps colonel, then they have nothing to fear from this impartial tribunal. For we all seek the truth—and we all revere the blessings of justice,” Les Forges concluded.
Then she politely bowed toward the bench and took her seat.
The microphones of the three judges were turned off, and they spoke quietly among themselves for a few minutes.
Then the microphones were turned back on, and Judge Korlov announced they would defer decision on the jurisdictional issue until at least the end of the prosecution’s case.
Les Forges once again walked to the podium. Delivering her opening statement, she was poised, cool, and confident.
She explained she would call, as a witness, the chief of police in Mexico. He would share his investigation of the scene, the incriminating evidence the police had found, and what they had deduced about the circumstances of the attack. His testimony would, she noted, decimate any potential defense of Colonel Marlowe that this was a “setup” or a “trap” for his unit. In fact, the prosecutor explained, the presence of CIA agent Carlos Fuego and his family in that little house in Chacmool would be explained in a way that would leave no question—no doubt—that he was not a hostage and was in no bodily danger that night, except from the machine guns of the American commandos.
Les Forges then promised a “bombshell” in terms of surveillance evidence regarding the malicious and murderous intent of Colonel Marlowe.
When she said that, Will turned to Marlowe, who wrinkled his brow but shook his head.
The prosecutor also promised “devastating” evidence from another Mexican police official, who had had actual contact with Carlos Fuego a few days before his death. Such evidence, she assured the court, would leave no doubt that Fuego had disagreed with his prior activities with the CIA and wanted to get out, but feared for his life—and actually believed that the American government might plan to exterminate him rather than allow him to leave its service.
Reporter Philippe Luc Cartier would be called as a witness, the prosecutor explained, with reference to his investigative work for a prominent French newspaper. Cartier had come into possession of information and documents showing the creation of BATCOM as an illegal assassination unit that broke with the traditional military hierarchy established under American law. His testimony would also show that the amorphous structure and lack of accountability of the BATCOM unit was an invitation for the kind of reckless and murderous event that had taken place at Chacmool.
Lastly, the prosecutor previewed the testimony of Dr. Michael Zagblundt—a retired colonel in the United States Army and a military expert. He would testify that the structure of BATCOM was a threat to freedom and to the civil liberties of citizens in other nations, and further, that the Chacmool mission, in its execution, constituted a clear violation of Article 8(2)(b)(iv) of the ICC war-crimes code—namely, that Marlowe had committed the war crime of excessive incidental death to civilians.
Will Chambers walked deliberately to the podium after Les Forges had finished.
“Your Honors,” he began, “I reserve my opening statement until after the close of the prosecution’s case. But I would urge this tribunal to remember what it knows full well—that this profoundly important, seminal case is ultimately going to be decided on credible facts and trustworthy evidence—not on empty promises or political arguments from the office of the prosecutor. Until I address this court at the close of the prosecution’s case, may your ears hear only the evidence, and may your eyes see only the truth.”
When Will sat down at the counsel table, Jacki, who was seated in the row behind him, leaned over and whispered in his ear, “Is it just me, Will—or are we a long way from Monroeville?”