Professor Sterio Presents Amicus Brief To Appeals Chamber of The International Criminal Court

Posted 2022-02-16 9:57am

CSU C|M|LAW Professor Milena Sterio, along with Case Western Reserve University School of Law Co-Dean Michael Scharf, presented an amicus brief February 14, 2022 before the Appeals Chamber of the International Criminal Court (ICC) in The Hague. The amicus brief deals with the application of the insanity defense in the case of The Prosecutor v. Dominic Ongwen. Professor Sterio and Dean Scharf were the lead authors of the amicus brief, which was submitted to the ICC on behalf of a small group of academics organized by the Public International Law and Policy Group (PILPG), a prominent non-governmental organization.

The defendant in the case, 45-year-old Dominic Ongwen, had been kidnapped by Joseph Koney’s Lord’s Resistance Army in northern Uganda as an eight year old and forced to become a child soldier. Over the years, Ongwen rose through the ranks to become one of the top commanders in the insurgent group at the time of his surrender to the ICC.

“This is a very important issue because defendants do raise these types of affirmative defenses with some frequency, and until now, it had not been established what type of an evidentiary burden the defendant faces in these types of cases,” explained Sterio. “This issue will remain relevant in future cases.”

At trial, the defense presented expert testimony that because Ongwen had been forcibly indoctrinated by the Lord’s Resistance Army as a child, he suffered from a mental disease or defect that precluded culpability before the ICC. The prosecution presented its own psychiatric witnesses to counter the defense. The trial chamber held that Ongwen had failed to meet the burden of proving the mental disease or defect defense. It sentenced him to 25 years for war crimes and crimes against humanity including murder, rape and sexual enslavement.

The amicus brief argues that the correct burden of proof in a case where the defendant alleges a ground excluding criminal responsibility (an affirmative defense), such as mental illness or duress, is that the defendant has an evidentiary burden to produce some evidence to support his/her claim of mental illness or duress, but that the prosecution retains the legal burden of proof to establish the defendant's responsibility beyond reasonable doubt.

“This ruling will have repercussions for future cases where the defendant asserts a mental illness or duress affirmative defense.  Depending on how the ICC decides, future defendants will have to meet a specific evidentiary (or legal) burden when raising their claims,” said Sterio. “If our position is adopted, future defendants will only have to produce some evidence of a mental illness or duress, enough to meet a "prima facie" evidentiary burden, but the legal burden of proof will remain on the prosecution to establish the defendant's guilt beyond a reasonable doubt.”

Professor Sterio, a prolific writer and active leader in the field of International Law, serves as Managing Director of the PILPG, a global pro bono law firm providing free legal assistance to parties involved in peace negotiations, drafting post-conflict constitutions and war crimes prosecution/transitional justice.

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