Tagged: investigation

Prof. Gershman Reviews The Midnight Assassin

The-Midnight-Assassin-2869890Prof. Bennett L. Gershman of the Elisabeth Haub School of Law at Pace University has reviewed a new book, The Midnight Assassin by Skip Hollandsworth.  In his review, The Midnight Assassin: Panic, Scandal, and the Hunt for America’s First Serial Killer. Prof. Gershman lends his prosecutorial eye to Hollandsworth’s written account of an unsolved series of murders – believed it to be the America’s first serial killer case. Prof. Gershman writes

Set in Austin, Texas—the capitol of the newly minted Lone Star state— The Midnight Assassin recounts a series of eight ghastly murders that were committed during the years 1884 and 1885. More like annihilations, these butcheries incited panic and paranoia in this frontier town of 17,000 people, and undermined municipal efforts to make Austin a mecca of prosperity and modernism.

The killer was never caught, although tantalizing clues point to several potential  suspects. Some observers believe that the killer fled Texas, traveled to London, and recreated himself into the legendary Whitechapel killer famously known as “Jack the Ripper.”

Prof. Gershman mentions a PBS TV documentary that identified the killer as 19-year old Nathan Elgin, who was allegedly apprehended at a crime scene, whose involvement was supported by additional circumstantial evidence, and after whose death these killings stopped. Yet, Hollandsworth discounts this possibility in his book leaving readers with a well-written dramatic story of one of the oldest (and almost forgotten) murder mysteries in the history of America.

Related Readings:

The Great Swindle: A Magnificent Novel about War-Related Crimes

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

In a novel recently translated into English by Frank Wynne, French writer Pierre LeMaitre takes the reader back 97 years ago to the final weeks of World War I. The novel begins with an account of a French officer’s ordering of a trench-to-trench attack against German forces at a time when everyone knows that the war is about to end. So the attack, although “successful” in achieving a very limited territorial gain, merely adds more senseless deaths and shattered lives to the horrendous casualties suffered in four years of war. During the attack, a terrible crime is committed. The reasons for this crime and for the attack itself are explored in LeMaitre’s trenchant analysis of the characters involved.

The novel proceeds to explore further horrors of the war and its aftermath. During the fighting, the bodies of the fallen were frequently interred in makeshift fashion, often buried in farmland and without coffins. After the war, families of the fallen sought to learn where their loved ones were buried and to have them exhumed for re-internment in a proper resting place. Because of the massive numbers of dead and problems in identifying decaying corpses, this process involved severe difficulties and taxed the resources of a French government whose finances were depleted by four years of war on French soil.

The novel tells the story of some unscrupulous people who schemed to profit from this situation through acts of fraud in purporting to identify, exhume, rebury, and provide monuments for soldiers who died in service to their country. While the particular facts of this part of the story are fictional, they are largely based on an actual exhumation fraud in France that was exposed a few years after the war.

LeMaitre provides a brilliant and disturbing account of how a criminal scheme such as this could come about and how, at a time at once of both national celebration and mourning, some of those in power would prefer to have a fraud like this swept under the rug, not only for the sake of those grieving but primarily for their own sake in avoiding charges that they failed to exercise proper oversight.

The novel often shockingly forces the reader’s attention to some of the most abhorrent possibilities of human behavior and to the unspeakable suffering involved in war. But it also provides a story of extraordinary devotion to duty by common soldiers and by an investigator who pursues the truth and does the right thing, despite temptations to turn away.

The plotting and pacing of LeMaitre’s novel are superb. His character analysis plumbs the depths of the human soul, with great insight. It is not surprising that when this novel was published in France in 2013, it was awarded the Prix Goncourt, France’s leading literary award. An English translation was published this year, with the title The Great Swindle.

Related Readings:

The ICC’s Principle of Complementarity and Domestic Prosecutions

POST WRITTEN BYProf. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Before a matter can be fully pursued by the International Criminal Court, the ICC Prosecutor must first in the course of a preliminary examination determine, among other jurisdictional requirements, whether national authorities are actively pursuing a case of potential concern to the ICC. This is because the principle of complementarity, set forth in the Preamble of the Rome Statute and given specificity in Article 17 of the Rome Statute, debars the ICC from pursuing possible crimes within its subject matter jurisdiction if a State that can assert jurisdiction over the matter is doing so.

Article 19 of the Rome Statute provides additional force to the complementarity principle. It states that “[t]he Court shall satisfy itself that it has jurisdiction in any case brought before it” and that “[t]he Court may, on its own motion, determine the admissibility of a case in accordance with Article 17.” Article 19 also allows certain individuals and States to challenge the admissibility of a case.

In one of its first cases, the ICC prosecuted Thomas Lubanga Dyilo, the leader of a group pursuing violent opposition to the government of the Congo – despite the fact that the Congo was pursuing charges against him for genocide and crimes against humanity. Because these charges did not specifically include the crime of enlisting children under age 15 to participate in hostilities (a crime within ICC’s subject matter jurisdiction), the ICC determined that it could pursue that charge against Lubanga, without violating the principle of complementarity. ICC prosecution of Lubanga on this charge resulted in 2012 in the first conviction achieved by the ICC.

In an October 2015 report, ICC Prosecutor Fatou Bensouda needed to address the complementarity issue when requesting authority from a Pre-Trial Chamber to open an investigation into 2008 conflict in the South Ossetia region of Georgia. As written earlier, this conflict includes possible crimes committed by South Ossetian forces rebelling against Georgia and by Georgian forces in response, and – potentially – by Russian forces that intervened in support of the rebels.

In August 2008, Prosecutor Bensouda’s predecessor opened a preliminary examination of this matter. ICC Protocol regarding preliminary examinations requires the Prosecutor to first determine whether there is a reasonable basis to believe that crimes within ICC jurisdiction have been committed. The OTP recently made an affirmative determination regarding the Georgian situation prior to 2015. In her October 2015 Request for Authorization, Prosecutor Bensouda mentions that the seven-year delay in presenting her request was caused by the need, pursuant to Article 17’s complementarity requirement, to monitor efforts by national authorities in Georgia and Russia undertaking investigations of crimes of concern to the ICC.

The Prosecutor further states that Russia’s investigations appear to be proceeding. However, although Georgia had been engaging in investigations since 2008, Georgian officials notified her Office in March of this year that, because of several difficulties, Georgia was discontinuing its investigations. Because of this discontinuance, the Prosecutor concludes that there is at this time no complementarity objection that would defeat her request to open an investigation into the Georgian situation.

An ICC Pre-Trial Chamber must now decide whether to authorize the Prosecutor to open an investigation. The Trial Chamber will determine, among other jurisdictional issues, whether an investigation comports with the principle of complementarity. As noted above, even should the Chamber grant the Prosecutor’s request, challenges to admissibility may be raised at later stages.

ICC Prosecutor Expresses Concern About Upcoming Elections in Burundi

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

In a statement issued on May 8, 2015, the ICC Prosecutor expressed concern about “the growing tensions in [Burundi] and reports that violence ahead of the [forthcoming] elections may escalate, which could lead to the commission of serious crimes falling within the jurisdiction of the International Criminal Court.” She warned that “[a]ny person who incites or engages in acts of mass violence, including by ordering, requesting, encouraging or contributing in any other manner to the commission of crimes within ICC’s jurisdiction is liable to prosecution before the Court.” She advised that “[her] Office, in accordance with its mandate under the Rome Statute, will be closely following developments in Burundi in the weeks to come and record any instance of incitement or resort to violence.”

As discussed in our previous post, the ICC Prosecutor proactively expressed similar concerns about elections to be held in Nigeria, warning that her Office stood ready to investigate election-related violence in that country that might provide for ICC jurisdiction.

Subsequently, reports indicated that the Nigerian elections proceeded reasonably well. Reuters reported that “[d]espite some technical glitches and the killing of more than a dozen voters by Boko Haram gunmen, the election has been the smoothest and most orderly in Nigeria’s history.” In her May 8 statement, the Prosecutor commented on the Nigerian election and stated that “[t]he recent elections in Nigeria have shown how commitment to peaceful elections by the electoral candidates can prevent mass violence.” While it cannot be determined at this time whether the Prosecutor’s statement in advance of the Nigerian elections contributed to a reasonably peaceful outcome, it may well have done so.

The Prosecutor’s statement about Burundi represents a further step in pursuit of her Office’s policy, articulated in the November 2013 Policy Paper on Preliminary Examination, to “issue public, preventive statements in order to deter the escalation of violence and the further commission of crimes.” Her statement regarding Nigeria addressed a situation in which her Office had previously commenced a preliminary investigation. Although Burundi, as Nigeria, is a State Party to the ICC Statute, the Prosecutor has not as yet opened an investigation into matters in Burundi. Accordingly, the Prosecutor’s May 8 statement represents a further initiative to also perform early warning function in line with the OTP’s prevention efforts.

U.S. Commission Calls for ICC Investigation of ISIL

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

On April 30, 2015, the U.S. Commission on International Religious Freedom (USCIRF) issued its annual report on the condition of religious freedom around the world. In this report, the USCIRF recommends, among other things, that the U.S. Government call upon the UN Security Council to refer to the International Criminal Court (ICC) the widely publicized violence attributed to the Islamic State of Iraq and the Levant (ISIL).

The USCIRF is an independent, bipartisan U.S. federal government advisory body created by Congress through the International Religious Freedom Act of 1998 (IRFA). The USCIRF’s statutory mandate includes monitoring religious freedom conditions globally and making recommendations for U.S. policy. IRFA mandates that the USCIRF base such recommendations on international human rights instruments such as the UN Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the Helsinki Accords.

The USCIRF’s 2015 annual report, which covers the period from January 31, 2014 through January 31, 2015, addresses troubling humanitarian issues in 33 countries. The report gives special attention to abuses committed in Syria and Iraq by forces associated with the Islamic State of Iraq and the Levant (ISIL). It states that in both of these countries “ISIL has unleashed waves of terror upon Yazidis and Christians, Shi’a and Sunnis, as well as others who have dared to oppose its extremist views.” The report charges ISIL with responsibility for summary executions, forced conversions, rape, sexual enslavement, abduction of children, and destruction of houses of worship.

Based on these findings, the USCIRF recommends that the U.S. Government “call for or support a referral by the UN Security Council to the [ICC] to investigate ISIL violations in Iraq and Syria against religious and ethnic minorities, following the models used [by the Security Council] in Sudan and Libya.”

The USCIRF’s report and recommendations regarding ISIL (aka ISIS) are in substantial accord with the published statements of the ICC Prosecutor. As written about previously, the ICC Prosecutor has expressed her grave concern about ISIL, while noting that in the absence of a Security Council referral, her office’s ability to investigate ISIL’s activities is limited by the ICC’s jurisdictional requirements.

Related Readings:

  • U.S. Commission on International Religious Freedom, Annual Report (2015).