Precursor Crimes to Terrorism and the Local Prosecutor's Role in Disruption

Much of the discussion of terrorism prosecution focuses on the federal judicial system or the use of military tribunals. The passage of state anti‐terrorism legislation in response to September 11, 2001, raises the issue of what role local prosecutors might play in responding to terrorism. Of particular interest is the role that local prosecutors have in identifying offenders who have committed crimes that may be precursors to terrorism and how they gather and share information. Using data from a survey of the 112 largest prosecutors’ offices in the country and information gained from case studies, this study explores the local prosecutor's role in responding to terrorism, how they are involved in the identification and prosecution of precursor crimes, and the overlap between federal and state prosecution.     

Investigation and Prosecution of Large-scale Crimes at the International Level: The Experience of the ICTY

Although the prosecution of large-scale crimes at the internationallevel shares some similarities to the prosecution of organizedcrime at the national level, there are a number of importantdifferences that make the two areas hardly comparable. Two distinctivetraits of international criminal proceedings stand out in thisregard: (i) the lack of any enforcement agency that would allowprosecuting authorities to carry out investigations on the territoryof an interested state without its assistance and the absenceof a general power to carry out such arrests, which render statecooperation of prime importance and (ii) the fact that the proceduralmodel of international criminal tribunals is mixed containingelements of accusatorial (common law) as well as inquisitorial(civil law) systems. As far as prosecutions are concerned, usefulconcepts and procedures adopted from both legal traditions canbe found in the Statute, the Rules of Procedure and Evidenceas well as in the approach of prosecutors, defence counsel andjudges to the introduction of evidence and, more generally,to the manner in which proceedings are conducted. One of themain examples of this is the acceptance of proof of facts bymeans other than oral evidence as a result of the influenceof the civil law tradition, which has progressively made itsway in the procedural system of the International Criminal Tribunalfor the former Yugoslavia (ICTY). Yet, on the other hand, somemethods normally resorted to in national criminal prosecutionmay turn out to be useful at the international level, such asresorting to insider witnesses. Although known to domestic systems,such practice may have a particular significance in the contextof the prosecution of international crimes. So have additionalforms of criminal participation (such as the notion of jointcriminal enterprise). Only a mixing of traditional and innovativeinvestigative tools and the proper balance of the differentlegal cultures can ensure effective prosecution of internationalcrimes.     

Pursuing justice,respecting the law

Conclusion In the 1980s, despite the rise of terrorist attacks worldwide, the international community failed to respond cooperatively. When U.S. citizens were the focus of attacks, even friendly countries had little incentive to risk the safety of their citizens or the tenets of their foreign policy to prosecute terrorists. In response, the United States passed statutes providing for extraterritorial jurisdiction over acts committed abroad against U.S. citizens and then engaged in a series of dramatic seizures to enforce these measures. Unfortunately, these abductions were generally not defensible under international law and, in any event, could not be used when a terrorist was located within the territory of a major friendly country. In large part unexpectedly, however, the statutes have rendered such extraordinary measures unnecessary while still remedying what was a visible failure of international criminal cooperation.Even without threatening international abductions, the United States can use the Hostage Taking Act and the Terrorist Prosecution Act to demand extradition and to undertake independent investigations of violations of federal laws. These efforts put pressure on governments that have custody over terrorists. The international and the diplomatic consequences of neither extraditing nor prosecuting have proven sufficient to encourage U.S. allies to prosecute terrorists themselves. Surprisingly, therefore, the statutes have turned out to be effective because they encourage prosecutions of terrorists abroad, thereby remedying a failure in international cooperation and helping to ensure a consistent, strong, international response to acts of terrorism despite the continued inability of the United States to obtain custody of those attacking its citizens.This is a revised version of a paper presented at an international workshop on Principles and Procedures for a New Transnational Criminal Law, organized jointly by the Society for the Reform of Criminal Law and the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany, May 21–25, 1991.Class of 1993, Harvard Law School, Cambridge, Massachusetts, U.S.A.     

America's response to terrorism: An empirical analysis of federal intervention strategies during the 1980s

Despite considerable interest among criminologists, the literature on terrorism has been largely atheoretical and nonempirical. This paper provides the results of a national study of federal criminal cases that arose from the FBI's Counterterrorism Program during the 1980s. The strategies of federal prosecutors are discussed in relation to Turk's notions of “explicit politicality” and “exceptional vagueness.” Evidence shows that in keeping with historical studies of American political crime, prosecutorial efforts to depict terrorists as common criminals have been the most frequently used and most successful strategy. Prosecutors' efforts to explicitly politicize the terrorists' crimes have been largely unsuccessful and are rarely employed.     

New laws but few cases: understanding the challenges to the investigation and prosecution of human trafficking cases

All fifty states and the federal government have passed laws to combat human trafficking, but we know little about their effectiveness. Using data from investigative case records and court files for 140 human trafficking cases in 12 U.S. counties and qualitative interviews with law enforcement, prosecutors, and victim service providers, we examined the characteristics of and challenges to investigation and prosecution of human trafficking cases under new state and federal laws. We found that few human trafficking cases are identified by local law enforcement, most cases forwarded to state prosecution are sex trafficking cases involving U.S. citizens, and state prosecutors overwhelmingly charge human trafficking offenders with other, lesser crimes. The legal, institutional, and attitudinal challenges that constrain prosecution of human trafficking are similar across study sites despite varying types of state antitrafficking legislation. Study results suggest prosecution of human trafficking cases is challenging. If new laws are to be effective, then local law enforcement and prosecutors should work collaboratively and adopt proactive human trafficking investigative strategies to identify both labor and sex trafficking cases. There is social benefit to holding traffickers accountable, but more emphasis should be placed on policies that identify and serve victims.     

The Federal/State Criminal Prosecution Nexus: A Case Study in Cooperation and Discretion

Contemporary studies of prosecutorial decision making at the state level are infrequent, and even fewer studies examine the discretionary decisions of federal prosecutors. In addition, virtually no scholarly literature examines the growing overlap between federal and state criminal jurisdiction. This paper advances both theoretical and empirical understandings of the organizational and political contexts in which prosecutorial discretion takes place by exploring the nexus between federal and state criminal jurisdictions. Drawing on interview research in a large urban area with several active federal/state cooperative prosecution programs, we suggest that these cooperative relations open new avenues of discretion for local and federal prosecutors; limit the authority of other court actors, including state judges; and erode the distinctions between federal and local criminal jurisdiction.     

A comparative analysis of conviction outcomes of American domestic terrorists

This research uses quantitative analyses to determine whether or not conviction outcomes differ across three major American domestic terrorism groups: ecoterrorists, left-wing extremists, and right-wing extremists. Findings suggest that ecoterrorists receive lighter treatment within the criminal justice system while controlling for important variables, such as gender, age, and count severity. Findings highlight differences between “home-grown” terrorist groups, departing from a large segment of terrorism research focused on domestic versus international comparisons or terrorist versus civilian comparisons. Results elicit new research questions to understand why domestic terrorists receive differential treatment within the criminal justice system, despite controlling for key variables.     

The role of prosecutors in ensuring human rights compliant responses to terrorism

Since 9/11 the threat from terrorism has been regarded as ‘exceptional’, a threat that requires military and sometimes even extra-judicial responses. But experience has shown that these responses can have unintended and counterproductive results. Many experts now believe that criminal justice and rule of law-based responses to terrorism are often more legitimate, effective and sustainable. The paper argues that prosecutors have a vital role to play in promoting appropriate criminal justice responses to terrorism. Yet with no international court with jurisdiction over terrorist crimes, prosecutors carry the primary responsibility to work with their local law enforcement agencies to bring terrorist suspects to justice before national courts, while ensuring that no misuses or abuses of authority have occurred. To deliver on this mandate, prosecutors must remain vigilant and ensure that the counter-terrorism actions of police, corrections and other law enforcement authorities are lawful and respectful of human rights. This will often require immense courage under fire.     

Cross-Classified Multilevel Models: An Application to the Criminal Case Processing of Indicted Terrorists

This study provides an application of cross-classified multilevel models to the study of early case processing outcomes for suspected terrorists in U.S. federal district courts. Because suspected terrorists are simultaneously nested within terrorist organizations and criminal court environments, they are characterized by overlapping data hierarchies that involve cross-nested ecological contexts. Cross-classified models provide a useful but underutilized approach for analyzing such data. Using the American Terrorism Study (ATS), this research examines case dismissals, trial adjudications and criminal convictions for a sample of 574 terrorist suspects. Findings indicate that diverse factors affect case processing outcomes, including legal factors such as the number of counts, number of co-defendants, and statute of indictment, extralegal factors such as the ethnicity of the offender, and incident characteristics such as the type of terrorism target. Case processing outcomes also vary significantly across both terrorist groups and criminal courts and are partially explained by select group and court characteristics including the type of terrorist organization and the terrorism trial rate of the court. Results are discussed vis-à-vis contemporary research on terrorism punishments and future directions are suggested for additional applications of cross-classified models in criminological research.     

国际刑事法院检察官的地位与功能研究

被赋予国际刑事案件调查、起诉权的检察官 ,在国际刑事法院运作程序中是最活跃最积极的因素 ,对于国际刑事犯罪的惩治起着关键性作用。其组织和功能上的特点是 :审检合署的机构设置 ;“检警一体”的功能结构 ;在检察事务和内部管理上实行“检察长负责制” ;受刑事预审法庭的司法审查等。但在检察官行使职权时 ,存在与相关国家主权协调 ,克服直接调查取证可能遇到的障碍 ,以及合理对待国际政治因素对刑事检控的影响等问题     

Sound and Fury: Pretextual Prosecution and Department of Justice Antiterrorism Efforts

Using Justice Department antiterrorism efforts as a case study, this article expands upon existing theories of pretextual prosecution by distinguishing a law enforcement system that employs a pretextual strategy from one that employs what I term technical or disingenuous prosecutions. Contrary to Justice Department claims, the data suggest that since September 2001, federal investigators continually have referred a large number of specious antiterrorism matters to federal prosecutors. The data further suggest that federal prosecutors are more likely to be engaging in technical or disingenuous prosecutions than pretextual prosecutions.     

The Relevance of the United Nations War Crimes Commission to the Prosecution of Sexual and Gender-Based Crimes Today

This article discusses aspects of the origin and development of jurisprudence relating to the prosecution of sexual and gender-based violence (SGBV) in the context of international criminal law. It examines a selection of archival material from the United Nations War Crimes Commission (UNWCC) and other bodies connected to it, noting that the UNWCC was the first multinational criminal law organization to explicitly endorse SGBV crimes as international crimes. UNWCC-supported trials in both Europe and Asia suggest that rape committed in the context of armed conflict or situations of mass violence was punishable as a serious crime nearly 70 years ago. Moreover, many of the theories of liability used by contemporary tribunals today were used in the UNWCC-supported cases. The authors maintain that the UNWCC archives are not only valuable for tribunals prosecuting conflict-related SGBV cases today, but the jurisprudence emerging from UNWCC-supported cases may also be quite relevant to contemporary policy debates.     

Feminist Prosecutors and Patriarchal States

In Prosecuting Domestic Violence: A Philosophical Analysis, Michelle Madden Dempsey focuses on the dilemma prosecutors face when domestic violence victims are unwilling to cooperate in the criminal prosecution of their abusive partners. Starting from the premise that the ultimate goal should be putting an end to domestic violence, Dempsey urges prosecutors to act as feminists in deciding how to proceed in such cases. Doing so, Dempsey argues, will tend to make the character of the prosecutor’s community and state less patriarchal and thus help stamp out domestic violence. This article analyzes two issues arising from Dempsey’s work: first, whether prosecutors can justifiably be viewed as representatives of their states and communities; and, second, how prosecutors committed to using their discretion to battle both domestic violence and patriarchy would go about determining in a particular case whether to pursue criminal charges against the wishes of a victim.     

Human Rights Prosecutions and the Participation Rights of Victims in Latin America

Since the 1980s, there has been a significant rise in domestic and international efforts to enforce individual criminal accountability for human rights violations through trials, but we still lack complete explanations for the emergence of this trend and the variation observed in the use of human rights prosecutions in the world. In this article, we examine the role that procedural law has had in allowing societal actors to influence in this rising trend for individual criminal accountability. We do this by focusing on participation rights granted to victims, such as private prosecution in criminal cases. Based on an exploration of an original database on human rights prosecutions in Latin America and fieldwork research in three countries, we argue that private prosecution is the key causal mechanism that allows societal actors to fight in domestic courts for individual criminal accountability for human rights violations.     

战争罪的国内立法研究

战争罪是在战争或者武装冲突中发生的违反战争法规、严重侵犯人权的罪行。战争罪主要是国际法上的罪行,但国内法院也承担着追究战争罪罪犯刑事责任的重要任务。将我国缔结的国际公约里规定的战争罪转化为国内刑法上的犯罪,是我国作为缔约国应当履行的条约义务。但我国《刑法》只有第446条和第448条规定的两个犯罪才基本符合国际法对于战争罪的定义。我国《刑法》应当专章设立“危害人类和平与安全罪”,使其包括战争罪等核心罪行,这样可以更好地维护我国的刑事管辖权,有效地避免我国公民受到国际刑事法庭的审判,以便享受《国际刑事法院规约》补充管辖原则提供的益处。     

Victim Noncooperation in the Prosecution of Domestic Assault

In recent years increased attention has been focused on the response of the criminal justice system to domestic violence. Several studies have attributed the low rate of prosecution for spousal assaults to noncooperation on the part of police, prosecutors, and judges. A discussion of the role played by victim noncooperation in the prosecution process has been conspicuously absent. This article presents preliminary findings from a study of approximately 6,200 cases of domestic assaults reported to law enforcement authorities. The incidence and correlates of victim noncooperation are outlined at four decision points.     

International criminal justice: reflections on the past and the future

While Nuremberg constitutes a watershed in the evolution of international law with its establishment of the fundamental principle of individual criminal responsibility under international law it has not left much else by way of precedent for the subsequent international criminal tribunals. The adoption of UN Security Council Resolution 827 establishing the International Criminal Tribunal for the Former Yugoslavia, and Resolution 955 (1994) establishing the International Criminal Tribunal for Rwanda, set the groundwork for a new model of hybrid tribunals, with the establishment of the Special Court for Sierra Leone in 2002, the Extraordinary Chambers in the Courts of Cambodia in 2006, and the Special Tribunal for Lebanon in 2007. Perhaps one of the greatest legacies of these ad hoc and hybrid courts and tribunals has been paving the way for the establishment of a permanent international criminal court. However, they have also brought about the development of international criminal law through judicial interpretation, elaborating, inter alia, the elements of the crime of genocide as detailed in the 1948 Genocide Convention, the judicial recognition of the concept of joint criminal enterprise and the principle that national arrangements for amnesties in respect of international crimes are no bar to prosecution for such crimes at an international tribunal. In view of the completion strategies of the ad hoc Tribunals, as well as of the SCSL, this article delves into some of their legacies and outlines some of the difficulties and challenges they have faced, while identifying areas of best practice in order for the newly‐operational International Criminal Court to avoid repeating the mistakes of the past or even reinventing new wheels.     

我国面临的国际恐怖犯罪现状与应对策略

国际恐怖主义犯罪是威胁当今国际社会安全的非传统安全因素,近年来,国际恐怖组织、个人,以及境内外“东突”恐怖势力、“藏独”恐怖势力、邪教恐怖势力,尤其是境内外“东突”及“藏独”势力的恐怖主义犯罪已经对我国构成了现实威胁。针对威胁,公安机关应积极推动我国反恐立法,完善反恐工作机制,参与国际反恐合作,重视情报、舆论引导和群众工作,加强安全防范和预案演练,以有效遏制和消除国际恐怖主义犯罪。     

Engaging With Criminal Prosecution: The Victim's Perspective

Despite more than a decade of policies that encourage prosecutors to proceed without the victim's input or actions in cases of intimate partner violence (IPV), prosecutors still often rely on the victim's participation to move a case forward. The purpose of this study was to identify the barriers and motivators influencing female IPV victims' engagement with the criminal justice system and their preferences regarding prosecution. Findings from focus groups with women who had experienced police response to IPV revealed that women wanted the violence to end but faced numerous barriers to engaging with the criminal prosecution process. The dominant voice favored police and prosecutors taking action toward prosecution without depending solely or heavily on the victim's active participation.     

Weapon choice and American political violence

Research Summary
The criminal use of firearms presents a unique challenge to policymakers and is the subject of scientific study in fields such as criminology, public health, sociology, and law. Previous research has described firearm use by terrorists in the United States as uniformly common; however, little systematic attention has been focused on this phenomenon. Although valuable, progress in this area has been hampered by the absence of reliable quantitative information. Using data from the American Terrorism Study and the U.S. Sentencing Commission, we examine the firearm-offending characteristics of 923 federal felons and 336 terrorists.
Policy Implications
Findings indicate that many systematic differences exist between terrorists and other types of federal felons and that terrorists are more likely than other felons to be convicted of firearm-related crimes. We recommend that official efforts to monitor weapons sales—such as the Brady Act—continue to include those named on the terrorist watch list and that those named on the list be subject to additional law-enforcement scrutiny when attempting to purchase firearms. These efforts should be coordinated by federal law-enforcement agencies to facilitate the effective use of existing antiterrorism mechanisms in both blocking purchases and garnering intelligence on terrorists attempting to obtain firearms.