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The Mental Incapacity Defence in International Criminal Law: Ramifications from the Ongwen Trial Judgment

In: International Criminal Law Review
Authors:
Pascale ChiffletLa Trobe University Law School, Plenty Road, Bundoora, Melbourne, VIC 3000, Australia, Corresponding author, P.chifflet@latrobe.edu.au

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Ian FreckeltonLaw Faculty, University of Melbourne, 185 Pelham Street, Melbourne, VIC 3000, Australia
Supreme Court of the Republic of Nauru, Republic of Nauru
Department of Psychiatry, Faculty of Medicine, Dentistry and Health Sciences, University of Melbourne, Grattan Street, Parkville, VIC 3010, Australia
Department of Forensic Medicine, Monash University, 65 Kavanagh Street, Southbank, VIC 3006, Australia
Krieger School of Arts and Sciences, Advanced Academic Programs, John Hopkins University, 1717 Massachusetts Avenue NW, Washington, DC 20036, USA, i.freckelton@vicbar.com.au

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Abstract

The defence of mental incapacity raises unique challenges in the particular context of mass atrocity and international criminal law. Yet, it has remained largely unexplored in the jurisprudence of international courts and tribunals. The Trial Chamber judgment issued by the International Criminal Court in the case of Dominic Ongwen offered a unique opportunity to remedy this and clarify the legal contours of the defence. Unfortunately, the court engaged minimally with these issues. This article examines the court’s reasoning in the Ongwen case and the lessons that may be learnt from it about the operation of the defence, particularly in relation to the treatment of expert evidence. It is contended that while there were significant shortcomings in the claim put forward by Ongwen in the aftermath of the judgment, the prospects of advancing a successful defence of mental incapacity based on control-related disorders in the future appear limited.

Abstract

The defence of mental incapacity raises unique challenges in the particular context of mass atrocity and international criminal law. Yet, it has remained largely unexplored in the jurisprudence of international courts and tribunals. The Trial Chamber judgment issued by the International Criminal Court in the case of Dominic Ongwen offered a unique opportunity to remedy this and clarify the legal contours of the defence. Unfortunately, the court engaged minimally with these issues. This article examines the court’s reasoning in the Ongwen case and the lessons that may be learnt from it about the operation of the defence, particularly in relation to the treatment of expert evidence. It is contended that while there were significant shortcomings in the claim put forward by Ongwen in the aftermath of the judgment, the prospects of advancing a successful defence of mental incapacity based on control-related disorders in the future appear limited.

1 Introduction

On 4 February 2021, the International Criminal Court (icc) found Dominic Ongwen guilty of 61 counts of war crimes and crimes against humanity (Ongwen Trial Judgment).1 The offences concerned atrocities committed in his role as a brigade commander in the Lord’s Resistance Army (lra) in Northern Uganda between 2002 and 2005.2 On 6 May 2021, Ongwen was sentenced to a total period of 25 years of imprisonment.3 He has filed an appeal.

The factual circumstances in which Ongwen’s criminality is said to have taken place raise previously unexplored legal issues in relation to the role and effect of his own prior victimisation as a child soldier on his mental capacity. Ongwen, who became known as the ‘White Ant’,4 was one of more than 20,000 children believed to have been abducted and recruited as soldiers, aides or sexual slaves by the lra between 1987 and 2006.5 He was abducted on his way to school in 1987, when he was between nine and fourteen years old, and subjected to a brutal initiation.6 He was immediately taken to the ‘training wing’ where he was taught to march, parade and use guns.7 He was beaten and witnessed the killing of a person who had sought to escape the lra, in a process intended to serve as a lesson to young recruits.8 As part of this indoctrination process, he was himself forced to slaughter a number of people and hang their intestines on trees.9 In 1991, Ongwen was informed that his own parents had been brutally killed.10 Over the years, he displayed remarkable efficiency and rose in the ranks of the lra to become commander of the Sinia brigade in 2002.11 In this capacity, Ongwen led bloody campaigns against camps for internally displaced persons in Northern Uganda and oversaw the abduction of hundreds of children to serve in the lra.12 Ongwen was also convicted of crimes of sexual violence against a number of female abductees, including enslavement, sexual slavery, coerced marriage and forced pregnancy.13

At trial, under what was the very first application of Article 31(1)(a) of the Rome Statute,14 the Defence argued that as a consequence of his own victimisation, Ongwen’s mental capacity at the time of the charged conduct was effectively destroyed and he should be found not guilty on the ground of mental incapacity.15

In accordance with the Rome Statute, which precludes the prosecution of children under the age of 18,16 Ongwen was tried as an adult for the crimes he committed as an adult. That said, his case exposes a number of complexities in our understanding of mass atrocity. It challenges the reality and scope of individual agency in the context of brutal structures such as the lra.17 It has been suggested that international criminal law may be unable or unwilling to explore the nuances of this form of ‘agency amid chains’, and the ‘choiceless choices’ that are made, by children and adults alike, to survive.18 Its most direct response, as imperfect as it is, is the defence of duress, the demonstration of which is subject to a very high legal threshold.19 Ongwen’s claim that he acted under duress was found to fall short of that threshold.20 More fundamentally, the law operates on the presumption that individuals ought to resist or break away from oppressive systems such as the lra, irrespective of the enormity or hopelessness of the task.21

Ongwen’s story also calls into question the binary narrative about victims and perpetrators and reveals ‘the circulatory nature of the victim–victimiser spectrum’.22 As Drumbl notes, ‘the international legal imagination is beguiled by chronological bright lines’;23 in Ongwen’s case, his turning 18 years old meant that he was now within the legitimate reach of international prosecution, irrespective of the enduring effect of his experience as a child soldier. This was so despite the icc recognising in no uncertain terms the ongoing impact of the suffering of child soldiers in their adult life.24 The Ongwen Defence sought to highlight this incongruity in closing arguments, contending:

[Y]our Honour, there is an interesting reasoning --the way the Prosecution reasons back and forth, back and forth about some of these is very laughable. They admit that Mr Ongwen went through hell in the bush, of course these are my --I’m paraphrasing, went through hell in the bush and was turned into a devil. But later, they turn around and say, “Nevertheless he emerged from hell a complete saint. He is a saint and should be judged on the basis of a reasonable man”.25

Some have gone so far as to argue that the trauma suffered by child soldiers forcibly recruited into armed groups during their formative years26 may in fact mean that as adults, they lack the ‘capacities of responsible agency’ that underpin criminal responsibility.27 Ongwen’s Defence adopted a similar argument, anchored in what they claimed was Ongwen’s mental incapacity. They portrayed a man plagued by mental illnesses that stemmed from his abduction;28 he ‘became a madman’,29 they said, and ‘lost his mind’.30

The mental capacity of an accused has the potential to be relevant to international criminal proceedings in at least two significant ways. First, it bears upon the threshold issue of whether an accused is fit to stand trial. An accused may suffer from a physical or mental disorder such that they may not have the capacity to exercise their rights effectively in the criminal proceedings against them.31 This includes the capacity to plead, to understand the proceeding and the evidence, to instruct counsel and to testify.32 Unfitness in this regard has been defined in the jurisprudence of international criminal courts and tribunals as an incapacity to understand the fundamental aspects of the proceedings and to be able to participate meaningfully in them.33 The standard of capacity required is one of sufficiency, and the accused need not be able to ‘fully comprehend the course of the proceedings in the trial, so as to make a proper defence’.34 This issue was raised at the commencement of Ongwen’s trial, the Trial Chamber holding that there was no evidence that Ongwen was unfit to stand trial.35

Second, the mental capacity of an accused at the time of the alleged offences may serve as a substantive defence to the allegations against them. If established, the defence of mental incapacity, or the defence of insanity as it is often referred to, constitutes a ground for the exclusion of criminal liability.36 It is this second aspect of an accused’s mental capacity as a defence to the charges that is the focus of this article, and of the relevant parts of the Ongwen Trial Judgment.37

The defence of mental incapacity is enshrined in Article 31(1)(a) of the Rome Statute, which recognises as a ground for excluding criminal responsibility the circumstance where, ‘at the time of the person’s conduct, [t]he person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law’.38 This provision represents the first codification of the defence in the statute of an international criminal court or tribunal.39 In turn, the Ongwen case offered the first opportunity to interpret the provision.

This article analyses the Ongwen case and the bases advanced by the defence for a claim of mental incapacity. It examines the available scholarly literature and case law and considers how the defence of mental incapacity has evolved in international criminal law and what can be learned from the Ongwen Trial Judgment on its scope and operation. It is argued that the Ongwen Trial Judgment offered a unique opportunity for the court to explore and define the contours of the defence under the Rome Statute. Disappointingly in terms of the development of international criminal law jurisprudence, the Trial Chamber did not engage at any length in such an exercise or attempt to resolve uncertainties that emerged from the parties’ legal submissions on the scope or operation of the defence. Much of the Trial Chamber’s reasoning was instead focused on the assessment of the evidence of the accused’s mental capacity, including as it emerged from conflicting expert evidence adduced at trial. However, important implications arise from the Trial Chamber’s findings in respect of the role of and methodological expectations for mental health expert evidence, including in relation to the scope of the information that ought to underlie an expert opinion and the mitigation of the potential influence of malingering. Further, the Trial Chamber’s findings on the issue of the co-existence of mental health disorders and functionality may well undermine future claims of mental incapacity by accused persons in senior positions of leadership or military command at the time of the relevant conduct. This is of particular relevance in the context of the icc (and other international criminal jurisdictions) whose focus is on ‘big fish’ rather than on low level perpetrators.40

2 Development of the Defence of Mental Incapacity in International Criminal Law

The exclusion of liability on the basis of mental incapacity is premised on the idea that the criminal law is concerned with perpetrators as rational agents.41 Convicting and punishing a defendant who was incapable of understanding the nature of their conduct or of controlling their actions is viewed as both unjust from a retributivist point of view, and futile from a deterrence perspective.42 As was famously stated by Justice Dixon in the Australian High Court case of R v Porter, ‘it is perfectly useless for the law to attempt, by threatening punishment, to deter people from committing crimes if their mental condition is such that they cannot be in the least influenced by the possibility or probability of subsequent punishment.’43

The defence of mental incapacity, however, has not been explored by international criminal courts and tribunals. The complexity of the defence itself and its application may well have played a role in this dearth of attention. Indeed, the assessment of an accused’s mental capacity at the time of the alleged offence(s) is necessarily a difficult exercise of retrospective analysis that relies on subjective and conflicting mental health expert evidence. The ‘interweaving of legal and psychiatric issues’ has also been noted as a source of discomfort in both the domestic and international context.44 Of further relevance is the public perception of the defence as an unwarranted exemption from liability, mental incapacity being a complete defence which excludes an accused’s criminal responsibility for the acts they may have committed. This concern is compounded in the context of the extreme gravity of the offences that tend to be the subject of charges before international criminal courts and tribunals. The ensuing ‘legal embarrassment’45 and potential impact of acquittals on the perceived legitimacy of these institutions, particularly amongst victimised communities,46 may well explain in some measure the resistance to courts’ preparedness to find the defence established.

The commonly widespread and enduring nature of mass atrocity crimes only adds to these complexities. The conduct that underpins Ongwen’s conviction, for instance, spanned a number of years, rendering the forensic assessment of his mental capacity over that period all the more complex. It was also noted that crimes carrying a policy element, such as genocide and persecution as a crime against humanity, might be less likely to be found to give rise to the defence than other crimes.47 It is unlikely that an accused person may be able at once to be found to have held the special discriminatory intent that commission of these crimes requires and at the same time lack the mental capacity to understand the nature of their conduct or control their actions. Equally, there may be a measure of incompatibility between the holding of leadership positions that required an accused to function at a high level at the relevant time and a claim of mental incapacity.48 In some cases, a high level military officer may struggle to argue successfully that they suffered from a mental disease or defect such that they lacked the capacity to understand or control their actions, yet still have exhibited the executive skills required for the planning, organisation and implementation of operations or policies at the time of the relevant conduct. Finally, the unavailability of a special verdict and associated involuntary confinement in forensic mental health settings, creates further hurdles. International courts do not have access to supervision and treatment facilities for persons found not to have had the necessary mental capacity at the time of the offences.49 A successful claim of mental incapacity, therefore, is a high reward exercise that leads to a full acquittal rather than involuntary confinement.

2.1 The ‘Diminished Responsibility’ Precedents

The Ongwen case is particularly significant in that the defence of mental incapacity as a ground for the exclusion of criminal liability was examined for the first time by the icc. There was, in fact, no direct precedent in international criminal law for this largely unexplored legal issue. Nevertheless, some guidance could be found from the consideration of the related, albeit distinct plea of diminished responsibility. Diminished responsibility in this sense refers to an impairment, rather than a lack of capacity at the time of the relevant conduct, and the legal consequences of a successful plea do not lead to an acquittal.

The case of Wilhelm Gerbsch, heard in the aftermath of the Second World War, provided an early example of a plea of diminished capacity. In 1948, the accused was found guilty of crimes against humanity by the Special Court in Amsterdam in relation to the ill-treatment he inflicted on prisoners in the Zoeschen camp while he served as a guard there.50 The court briefly acknowledged that the ‘accused’s mental faculties were defective and undeveloped’, both at the time of the crimes and at trial.51 The effect of this finding was that the accused evaded capital punishment, as his sentence was mitigated to 15 years’ imprisonment.52

Predominantly, the jurisprudence on diminished capacity has stemmed from the work of the ad hoc International Criminal Tribunal for the former Yugoslavia (icty). No mention was made of the defence of mental incapacity in the Statutes of the icty or its companion, the International Criminal Tribunal for Rwanda (ictr).53 In his Report dated 3 May 1993 that recommended the creation of the icty, the Secretary-General viewed the matter as falling within the inherent jurisdiction of the tribunal: ‘The International Tribunal itself will have to decide on various personal defences which may relieve a person of individual criminal responsibility, such as minimum age or mental incapacity, drawing upon general principles of law recognized by all nations.’54 The sole relevant provision in the Rules of Procedure and Evidence (rpe) of both ad hoc tribunals arose, somewhat oddly, in the context of disclosure obligations rather than in relation to available defences. Rule 67(A)(ii)(b) required the defence to ‘notify the Prosecutor of its intent to offer… any special defence, including that of diminished or lack of mental responsibility’.

The Celebići case saw the icty consider for the first time the scope of the ‘special defence’ of diminished capacity set out under rule 67(A)(ii)(b) of the rpe. The Defence of Esad Landžo, a guard at the Celebići prison camp convicted for the ill-treatment and murder of Bosnian Serb and Croat detainees, made a plea of diminished capacity on the basis that the accused suffered from a personality disorder during the period relevant to the charges. This provided the Trial Chamber with the opportunity to set out the legal parameters of such a ‘defence’, including by reference to general principles of law as they applied in domestic systems. Particular emphasis was placed on the provisions of the Homicide Act 1957 (Eng & Wales), under which a successful plea of diminished capacity results in a charge being reduced from murder to manslaughter (rendering the associated death penalty that was then mandatory no longer relevant), where the accused suffered from an ‘abnormality of mind’ that ‘substantially impaired’ their ability to control their actions.55 This provision was designed, the Trial Chamber determined, to capture circumstances that raised issues of capacity, but did not satisfy the particular requirements for insanity, as set out in the M’Naghten rules, a reference to the early English case that formulated the seminal test for criminal insanity.56

The consequences of this interpretation are that the diminished capacity defence before the icty did not offer a complete defence or even a partial defence to murder (a point made essentially moot by the absence in international criminal law of the alternative offence of manslaughter), but rather served only to mitigate sentence.57 It allowed the court to consider circumstances where an accused suffered from ‘an abnormality of mind’ that impaired their capacity to control their actions. Abnormality of mind in that sense must ‘have arisen from a condition of arrested or related development of mind or any inherent causes induced by disease or injury’, demonstrable by medical evidence; the manifestation of emotions, however extreme, does not suffice.58 The Trial Chamber emphasised that the focus on volition was the distinguishing feature. Unlike the insanity defence, it held, it was an accused person’s inability to control their actions (despite recognising their wrongfulness) that was at the heart of the plea of diminished capacity.59

The role and treatment of expert evidence is of particular importance in this context. Although the Trial Chamber accepted the psychiatric expert evidence, including from three forensic psychiatrists called by the Defence, to the effect that Landžo suffered from a personality disorder during the relevant period, it found that ‘the evidence relating to his inability to control his physical acts on account of abnormality of mind, is not at all satisfactory’.60 Findings from the experts suffered from the unavoidable handicap that they were made some six years after the offences were committed, on the primary basis of information provided by Landžo himself, much of which was found to be unreliable by the Trial Chamber.61 The Appeals Chamber affirmed this determination and held that ‘[a]n expert opinion is relevant only if the facts upon which it is based are true.’62 While Landžo argued that the psychiatrists who examined and interviewed him at great length were trained to detect forms of malingering, the Appeals Chamber emphasised that determination of the reliability of the facts underpinning an expert opinion falls to the Trial Chamber, in light of the entirety of the evidence available at trial, which it had the advantage of having heard.63

These findings highlight some of the hurdles that an accused person making a claim of mental incapacity is also likely to face. Of particular relevance is the common delay between the charged conduct and the mental health expert examination of the accused. In the inevitable absence of contemporaneous records, the mental health expert evidence is necessarily retrospective. As was the case for Ongwen, years will often have elapsed between the specific conduct in relation to which the mental capacity of the accused is being evaluated and the actual psychiatric or psychological assessment of the accused. This difficulty is compounded by the fact that in some cases, including Ongwen’s, the relevant conduct itself spanned many years. The nature and possible unreliability of the information underpinning the mental health expert evidence are therefore critical considerations that the court needs to take into account, including by reference to the evidence available at trial.

In the subsequent case of Vasiljević, the Trial Chamber reconsidered the distinction between cognition and volition and adopted a broader interpretation of diminished capacity. Mirad Vasiljević was found guilty of crimes committed in Višegrad as a member of the White Eagles paramilitary unit, including a massacre of several Bosnian-Muslim men by the Drina River. The Trial Chamber held that the plea encompassed an impairment of the ‘capacity to appreciate the unlawfulness of or the nature of [the] conduct’, thereby including the cognitive element of the mental incapacity defence.64

Vasiljević led evidence from a number of experts, including a forensic psychiatrist, to the effect that at the time of the massacre, he suffered from prodromal psychosis induced by chronic alcoholism, which impaired his capacity to understand the consequences of his conduct.65 The Trial Chamber rejected this evidence as speculative and expressed a ‘preference’ for the findings of the prosecution expert who interviewed the accused and found no substantial impairment. The Trial Chamber held that this was consistent with the content of the accused man’s hospitalisation records some days after the relevant events, where he was described as ‘oriented’,66 as well as the testimonial evidence of two survivors of the massacre.67 In the further case of Jelisić, despite accepting that the accused man exhibited ‘borderline, narcissistic and anti-social characteristics’, the Trial Chamber held, without any elaboration, that these did not diminish the accused’s responsibility.68

It is apparent, therefore, that although an accused’s diminished capacity at the time of offending in principle may reduce the sentence that is appropriate to be imposed, rigorous expert evidence in such cases is crucial. In practice such pleas have not enjoyed much success. The courts either have not accepted that on the evidence the accused suffered from an abnormality of the mind, or that such abnormality caused a substantial impairment during the period of offending. In its discussion of the plea of diminished capacity in Celebići, the Appeals Chamber left open the possibility of an accused making a ‘plea of insanity’ or claiming a lack (as opposed to an impairment) of mental capacity, and that such a claim, were it successful, would be ‘a defence in the true sense’ and entitle the accused to an acquittal.69 The diminished capacity precedents, however, illustrate some of the difficulties that defence teams are likely to face in attempting to demonstrate mental incapacity.

2.2 The ‘Destruction of Capacity’ Defence before the icc

The 1998 Rome Statute codified the defence of mental incapacity as a ground for the exclusion of criminal responsibility. Article 31(1)(a) reads:

A person shall not be criminally responsible if, at the time of that person’s conduct, the person suffers from a mental disease or defect that destroys that person’s capacity to appreciate the unlawfulness or nature of his or her conduct, or capacity to control his or her conduct to conform to the requirements of law.

The provision was the subject of very little discussion in the course of the complex negotiations that preceded the adoption of the Rome Statute. Article 31(1)(a) mirrors Argentina’s proposal, which was submitted as part of the Draft Statute to the Diplomatic Conference.70 The Syrian delegation requested the addition of a note to clarify that the term ‘law’ referred to Article 20 of the Rome Statute.71 It further objected, without success, to the phrase ‘mental defect’, which it viewed as overly broad.72 Beyond this, however, the draft provision was not the subject of any further discussion or scrutiny and was adopted largely unchanged.73 Proposals for a provision addressing an accused person’s diminished responsibility were presented to the Preparatory Committee but did not make their way into the draft Statute or Article 31(1).74

The defence of mental incapacity has been said to be a ‘model of pluralism’75 and requires the demonstration of two distinct elements. First, the accused person must have suffered at the relevant time from a mental disease or defect. This is a broad formulation, the focus appearing to be on the effect of the mental condition rather than on its specific label.76 Second, the consequence of the mental disease or defect must be such that the accused person’s cognition (capacity to appreciate the lawfulness or nature of their conduct) or volition (capacity to control their conduct) was not merely impaired, but effectively destroyed. The destruction of capacity is a high threshold and appears to require the absence of any residual capacity. The suggestion was made that it may well be ‘deliberately unattainable’;77 however, it was also said to be justified given the seriousness of the crimes brought before the icc.78

The reference to an accused person’s capacity to appreciate the lawfulness of their conduct departs from the traditional formulation articulated in M’Naghten, the focus of which is on ‘the nature and quality’ of the person’s conduct, or its wrongfulness.79 Reliance on lawfulness in that sense offers a narrow and objective lens and means that the court need not engage with the more granular nuances of what may be viewed as right or wrong by those embedded in a particular conflict and its complexities. It also has a normative function whereby the defence of insanity is inherently defined by reference to the antithesis of ‘normality’. This may have posed particular challenges in the context of the Ongwen case where acts of atrocity were common, legitimised and compelled in the lra; by engaging in them, Ongwen did not deviate from the ‘norms’ expected at the time and place, including what was presented as a spiritual duty by Kony.80

Of further relevance is the inclusion of volition, or the capacity to control one’s conduct, in the definition of the mental incapacity defence. This potentially broadens the scope of the defence to encompass a greater range of control-related conditions, including post-traumatic stress disorder (ptsd) or dissociative disorder as were asserted by the Defence to be at the heart of their claim of mental incapacity in the Ongwen case. While this is likely to be the most pertinent disorder of this kind, what would need to be shown in order to satisfy Article 31(1)(a) would be destruction of capacity either to appreciate the unlawfulness or nature of a person’s conduct, or capacity to control conduct to conform to requirements imposed by the law. A condition which removed the power of volition, in principle, could satisfy such requirements but the threshold is very demanding.

In the domestic context, ptsd has rarely resulted in the delivery of verdicts of insanity or mental impairment because the condition has not been found to deprive a person of the capacity to know what they were doing or that it was wrong.81 Nevertheless, it has the potential to contribute to serious symptomatology that can at the least militate against the capacity of an offender to consider and incorporate in their decision-making the wrongfulness of their conduct or of its ramifications. An aspect of ptsd under the 2013 edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (dsm-5)82 is the potential presence of ‘dissociative reactions’, although these are not preconditions to the diagnosis of ptsd; dissociation is but one of five indicia for the B category of ‘intrusive symptoms’ under dsm-5—one needs to be established for a diagnosis. Such reactions can take the form of flashbacks where the individual feels or acts as though traumatic events which they have previously experienced are recurring. They can take the form of ‘depersonalization’, where there are persistent or recurrent experiences of feeling detached from, and if one were an outside observer of, one’s mental processes or body, as ‘derealization’ where there are persistent or recurrent experiences of unreality of surroundings.83 Such symptomatology is associated with greater severity, more comorbidity and more protracted trauma history84 although the relationship between dissociation and morbidity may not be entirely linear—put another way, there is no clear correlation between severity of ptsd symptomatology and the presence (or absence) of dissociative symptomatology.85 In short, dissociation in a particular context may be associated with ptsd but it would be rare for it to be such as to exculpate or even significantly mitigate an extensive series of criminal acts.

An associated mental disorder under the dsm-5 is the controversial diagnosis of dissociative identity disorder (did) which involves a disruption of identity indicated by the presence of two or more distinct personality states (experienced as possession in some cultures), with discontinuity in sense of self and agency, and with variations in affect, behaviour, consciousness, memory, perception, cognition, or sensory-motor functioning.86 It has rarely been successfully invoked as a defence, even in the United States where most attempts have been made,87 and in some decisions expert evidence diagnosing the disorder has not been regarded as reliable and therefore admissible.88 Dawson has pointed out that the criminal law’s unified conception of the person generally precludes the argument that a diagnosis of did, formerly known as multiple personality disorder can ground the defence of insanity: ‘In effect, when carrying out specific acts in a particular frame of mind the actor is deemed to act as the agent of the whole legal person, who is therefore criminally responsible for the conduct.’89 This compounds the difficulty of proceeding from the diagnosis of did to the plausible assertion that by reason of the diagnosis the person fulfilled the legal criteria for a finding of not guilty on the basis of mental incapacity.

The legal characterisation of the defence of mental incapacity, and of its particular components, is only briefly touched upon in the Ongwen Trial Judgment. The Trial Chamber affirmed that the defence requires that the accused’s mental disease or defect (without differentiating between the two) effectively destroys either the person’s cognitive capacity or their capacity to control their actions; there is no legal requirement that both be destroyed.90 It accepted that depending on the circumstances of the case, the accused person’s capacity at the time of the proceedings may or may not bear on the assessment of their capacity at the time of the conduct that forms the basis of the charges.91 The essential question, the court held, is that of the effect of the mental disease or defect on the mental capacities of the accused at the time of the relevant conduct.

The Trial Chamber did not expressly canvass what may amount to a destruction, as opposed to impairment, of an accused’s capacities; nor did it address the submissions by the Common Legal Representative of Victims that a ‘severe impairment’ of an accused person’s capacities may meet the threshold of destruction set out in the provision.92 This is an important gap in the court’s analysis. Indeed, such a submission goes to the very heart of the defence, delineating its potential boundaries and what may be required to establish it. It also leaves unresolved whether the presence of some residual capacity must, in and of itself, necessarily contradict a claim of incapacity. In the absence of any direct precedent and any clarification by the court, the ‘destruction’ of an accused’s capacities remains undefined, as does, in turn, the precise scope of the defence. Had the ‘severe impairment’ submission been accepted by the court, it may have paved a broader path for future claims. At the very least, such a finding would have brought a measure of certainty as to the applicable test.

One of the relevant and enduring legal matters in dispute between the parties was the applicable burden of proof.93 In this respect, the Trial Chamber found that the defence of mental incapacity (and presumably any other ground excluding criminal responsibility) did not invoke a specific onus or standard of proof, the Rome Statute being silent on this issue. The implication of that finding is that the defence, in effect, is to be considered in the general determination of whether the prosecution has established the guilt of the accused beyond reasonable doubt,94 rather than as part of a series of shifting evidentiary and legal burdens between the parties. The Trial Chamber did not explicitly consider Article 67 of the Rome Statute, which provides that ‘the accused shall be entitled not to have imposed on him or her any reversal of the burden of proof or any onus of rebuttal’, and the extent to which it may be relevant to affirmative defences. There is, in fact, relevant icty authority that the presumption is one of sanity, and that it is for the accused to rebut this presumption ‘by preponderance of evidence’.95 Such an approach reflects the practical difficulty for the prosecution to disprove insanity in circumstances where the facts of relevance are ‘peculiarly within [the accused’s] knowledge’.96 Equally, the Trial Chamber did not expressly engage with the Prosecution’s submission that the court ought to adopt an approach to the burden of proof akin to that applied in relation to claims that an accused may be unfit to stand trial.97 In this respect, the Prosecution argued that the defence of mental incapacity ‘operates under the direction of the Chamber’, as part of its truth-finding function and irrespective of any action by the parties, the consequence of such a submission being that no burden of proof is effectively placed on either party.98 Although the Trial Chamber appears to have reached the same conclusion, it did not articulate its reasoning or expressly endorse the Prosecution’s submission. The effect is that there remains an unfortunate measure of uncertainty on the issue.

Significantly, the Trial Chamber emphasised that whether the defence was established in the particular case falls exclusively for the court’s decision-making. In reaching a ‘judicial finding’ on the matter, the court is assisted by the entirety of the evidence in the case, including, but not solely, the expert evidence.99 The court held that ‘the evidence presented generally during the trial is also a crucial foundation of the Chamber’s findings, in particular because it allows important conclusions as to Ongwen’s mental state at the time of his conduct relevant for the charges.’100 In essence, therefore, the court is not bound by the findings of any of the relevant expert witnesses and may draw inferences as to the mental capacity of the accused at the relevant time from the evidence given by lay witnesses, which in Ongwen’s trial included his ‘wives’ and fellow lra soldiers. This is consistent with the icty’s approach to pleas of diminished responsibility. Importantly, it allows the court not to become hostage to the conflicting opinions of experts and any associated claims of malingering. The mental health expert evidence is but one, albeit an important, element of the court’s broader and holistic assessment of the available evidence.

3 The Mental Health Expert Evidence in the Ongwen Trial

Ongwen’s legal representatives submitted that he suffered from a number of mental health disorders that destroyed his capacity to appreciate the nature of his conduct and control his actions to conform with the requirements of the law. The Defence contended that Ongwen was diagnosed with severe depressive illness, ptsd, dissociative disorders (including depersonalisation, dissociative amnesia and did), severe suicidal ideation, and obsessive-compulsive disorder.101 The combined effect of these disorders was said to render Ongwen incapable of appreciating the nature of his conduct or controlling it at the relevant time; more specifically, the defence was that the crimes were committed by Ongwen’s alter personality (‘Dominic B’) in circumstances of dissociation where Ongwen had no control over his conduct.102 Ongwen was also described as having ‘a “child-like” mind which was incapable of forming the required mens rea for crimes or distinguishing right from wrong’.103 Both the Prosecution and the Common Legal Representative of Victims submitted that the evidence did not demonstrate that Ongwen was mentally incapacitated in the relevant sense.104

The assessment of expert evidence by the Trial Chamber was a central feature of the case; much, but not all, turned on it. In this respect, it is worth noting that the evidence admissibility regime before the icc is liberal, including in relation to expert evidence105 and that the court may appoint one or more experts to examine the accused.106 In the Ongwen case, the Trial Chamber received evidence from a number of experts. Interestingly, however, it did not appoint its own expert for the specific purpose of determining Ongwen’s mental incapacity claim. Two psychiatrists, Professor Emilio Ovuga and Dr Dickens Akena, were called by the Defence. Three Prosecution experts also gave evidence: Professor Gillian Mezey, a professor of forensic psychiatry, Dr Catherine Abbo, an academic in child and adolescent psychiatry, and Professor Roland Weierstall-Pust, a professor of psychology. Also before the Trial Chamber were the findings of Professor de Jong, who was called by the court to provide an assessment of Ongwen’s fitness to stand trial at the time of the proceedings, rather than a retrospective evaluation of his mental capacities at the time relevant to the charges. Because of the fundamentally different focuses of an assessment of fitness to stand trial (at the time of trial) and assessments as to the significance and extent of a mental disease or defect at the time of the commission of offences in the past (including at times many years before), the court did not rely on de Jong’s findings in its evaluation of Ongwen’s claim of mental incapacity.107

Defence experts Ovuga and Akena conducted multiple interviews with Ongwen, as well as with some of his close associates. Their first report to the court found that since his abduction, Ongwen’s prevailing mental state was characterised by severe depression, suicidal ideation, post-traumatic stress disorder and dissociative disorder (including did).108 On this basis, and in what may be viewed as an inappropriate leap to a legal finding, Ovuga and Akena broadly concluded that ‘Dominic Ongwen is not criminally liable for his actions while he was in the bush’.109 In a further report, Ovuga and Akena opined that Ongwen also displayed symptoms of dissociative amnesia and obsessive-compulsive disorder.110 Ovuga gave evidence that Ongwen had an alter personality, Dominic B, who ‘ruled his life on the battlefield and it is he who should be on trial, not Dominic A’.111 Ovuga and Akena testified that recurrent dissociative episodes, including loss of memory, altered Ongwen’s perception of reality and his capacity to control his own conduct.112 The Defence experts further relied on research suggesting that trauma-related disorders are prevalent among survivors exposed to war-related trauma.113

By contrast, the experts relied upon by the Prosecution found no evidence of ptsd, dissociative disorders or any other significant mental illness. All three experts gave evidence that, in essence, the presence of such severe disorders would have been fundamentally incompatible with Ongwen’s high level of functioning in the lra, the alleged disorders being associated with significant impairment of psycho-social functioning.114 Weierstall-Pust noted that the Defence experts did not appear to have tested differential diagnoses that had the potential to provide an alternative explanation for the symptoms reported by Ongwen, and that they often drew inferences about Ongwen’s capacity at the time of the charges based on current symptoms.115 Abbo’s evidence was that Ongwen displayed a high level of moral development and positive ‘bush socialisation’, and that she could not find signs of decompensation before 2012.116 The Prosecution experts broadly concurred that exposure to war-related trauma does not necessarily induce trauma-related disorders.117

The examination of Ongwen was a critical issue in the trial. While the Defence experts conducted multiple interviews with him over time, Ongwen refused to be examined by the Prosecution experts, who relied instead on other experts’ reports (including those by whom Ongwen agreed to be interviewed), the transcripts of evidence by lay witnesses, and clinical notes from the prison psychiatrist.

Despite this manifest limitation, the Trial Chamber accepted the opinion evidence given by the Prosecution experts as methodologically sound118 and held it to be consistent with the ‘strikingly coherent’ lay evidence available as to the conduct of Ongwen at the relevant time, which depicted a man who was functioning, affable and playful.119 Importantly, the Trial Chamber rejected the evidence given by the Defence experts as unreliable and methodologically flawed. On this basis, it found that ‘Dominic Ongwen did not suffer from a mental disease or defect at the time of the conduct relevant under the charges’.120 The first limb of the defence of mental incapacity, namely the presence of a ‘mental disease or defect’, was therefore not established, rendering it unnecessary to consider any impact on Ongwen’s mental capacity within the meaning of article 31(1) of the Statute, or the broader relevance of the alleged trauma disorders on mental capacity.

The Trial Chamber noted that the evidence given by the Defence experts suffered from ‘major internal contradictions’ and unsubstantiated inferences.121 Among those were the claims that Ongwen’s depression and suicidal tendencies were motivating forces for battle despite the incompatibility between the alleged disorders and Ongwen’s functionality in planning and implementing operations, as well as in his interactions within the lra.122 Claims that Ongwen ‘masked’ his mental health disorders to those around him at the relevant time equally failed to persuade the Trial Chamber. The court held that did implies a ‘discontinuity in the sense of self’ which was inconsistent with the alleged process of disguise, or the long-term memory Ongwen had of particular events.123 Similarly, the Trial Chamber noted that the Defence was not able to explain the supposed co-existence of otherwise inconsistent symptoms of dissociative amnesia and ptsd, other than to state that it was the ‘beauty of psychiatry’.124 A corollary of the Trial Chamber’s approach is that there was no repudiation in principle of the potential of either ptsd or did to amount to a destruction of mental capacity; rather, there was a finding that the evidence did not establish what was necessary for such a determination.

Of further concern to the Trial Chamber was the possibility of malingering, which it observed is a ‘common issue in forensic populations’.125 The Defence experts were found not to have been sufficiently alert to the potential issues of exaggeration and dissimulation by Ongwen,126 or to the potential gains that Ongwen may derive from them.127 This was compounded by the Defence experts’ heavy reliance on clinical interviews with Ongwen, at the expense of other sources of information, including the lay evidence adduced at trial or the notes of the prison psychiatrist.128 The Trial Chamber emphasised that while the clinical interview is an important component, external sources of information, as well as standardised psychometric assessments, can serve as helpful controls to identify or guard against the possibility of malingering.129 Omitting to consider them was ‘a fundamental failure that in itself invalidates the conclusions put forward’ by the Defence experts.130 Ironically, therefore, what might have been viewed as a clear advantage of the Defence expert evidence, namely that the assessors had conducted multiple examinations of the accused, became a limiting focus. While the Prosecution argued forcefully that Ongwen’s refusal to be examined by Prosecution experts was in fact part of a ‘pattern of manipulation and calculation’ about his mental health,131 the Trial Chamber refrained from making positive findings about this. It did, however, accept the Prosecution submission that the role of the Defence experts as both treating and forensic psychiatrists was impermissibly blurred.132 This was evidenced in part by the recommendations for treatment made by the Defence experts in their reports. Importantly for subsequent cases, the Trial Chamber noted that there is, in essence, an ‘inherent incompatibility between the duty of a treating physician and the duty of a forensic expert’;133 this ‘therapeutic alliance’, it held, affected their objectivity.134

The Trial Chamber made further stern criticisms in relation to the Defence experts’ methodology in assessing Ongwen. In a rebuttal report, Weierstall-Prust characterised the Defence experts’ reports as ‘sloppy in almost every aspect’.135 The Trial Chamber denounced the Defence experts’ scepticism towards standardised methods other than the clinical interview, including structured rating scales and the syndromal model at the core of the dsm-5. It found that these shortcomings significantly affected the validity of the Defence experts’ conclusions.136 The Trial Chamber also noted that the Defence experts had utilised an outdated edition of the dsm, rather than the 2013 dsm-5.137 This was of particular relevance to the diagnosis of ptsd because of the differences in diagnostic criteria between dsm-iv and dsm-5.138 Further, in respect of the diagnoses made by the Defence experts, the Trial Chamber was critical of the absence of a structured examination for the diagnoses offered139 and of their failure to reconcile their clinical interviews with other evidence given during the trial.140

While the findings of the Trial Chamber have clear implications for the substance and the nature of the expert evidence that may support a future claim of mental incapacity, there remains much uncertainty in relation to the broader place of culture in the mental health assessment of accused persons before the icc. In the Ongwen case, the Defence argued that while core symptoms of mental health would traverse cultures, their diagnoses are informed by culture.141 Those cultural factors, they contended, need to be considered when evaluating symptoms of mental illness ‘in an African context’, yet were minimised by the Prosecution experts.142 The Trial Chamber dismissed this submission on the basis that it failed to articulate with any precision how cultural factors impacted on the analysis of the various experts.143 This is not surprising given the broad-brush and vague nature of the Defence claims. While the court accepted that cultural context ought to inform mental health assessments, it also affirmed that the core characteristics of mental health disorders were ‘universally accepted’.144 This notion of ‘culture-free diagnostic categories’ has been challenged in the academic literature.145 Harden, for instance, noted that cultural psychiatry questions the ‘hidden prejudices inherent in the regnant bio-medical practice models’ and argued that the icc ought to engage meaningfully with the cultural dimensions of forensic mental health services.146 However, theoretical issues aside, the issue in a specific case, as implied by the Trial Chamber, is whether cultural assumptions, impressions and practices have the potential, as in Ongwen’s case, to result in a diagnosis or absence of a diagnosis—in other words whether there was evidence that local cultural factors were significantly diagnostically distorting or contaminating. While such factors in principle could result in a failure to have suitable regard to local beliefs, practices and superstitions and thus affect evaluation, for instance, of whether delusional or hallucinatory phenomena existed, such matters were not specifically raised by the Ongwen Defence.

A prominent gap in the Defence analysis related to the demonstration of a link between the alleged mental disorders and the specific crimes committed by Ongwen, spanning over three years between 2002 and 2005. Rather than systematically attempting to ascertain Ongwen’s mental state at the time of each and every incident that formed the basis of the charges, the Defence contended that Ongwen’s mental state was prevailing and enduring,147 and that his mental development ‘froze’ from the time of his abduction,148 presumably inviting the Trial Chamber to make broad and all-encompassing findings about the relevant period. The Defence argued that Ongwen suffered from a number of dissociative episodes between 2002 and 2005 and that his two personalities ‘Dominic A’ and ‘Dominic B’ ‘were active during the charged period’,149 without relating any of these episodes to specific crimes. Given the difficulties otherwise existing in relation to invoking did as a basis for a mental incapacity defence, especially given the high bar imposed by the Rome Statute, it is unsurprising that this resulted in a rejection of the defence.

The Trial Chamber’s findings that the evidence had not established that Ongwen suffered from a mental disease or defect at the time of the offences meant that the causal impact of any such disorder on Ongwen’s crimes became a moot point. The Trial Chamber did note, however, that the Defence experts had not meaningfully engaged with the complexities of determining the mental health state of Ongwen at the time of the relevant offences, and that they had instead proceeded on an assumption of retrospectivity—that how he was at trial was how he had been at the time, many years before, of the commission of the offences—which is not sufficient to establish a link between any disease or defect and the criminal conduct at hand.150 More generally, this legal requirement is likely to be difficult to meet in any claim of mental incapacity before the icc, in circumstances where alleged crimes typically involve numerous offences committed over a long period of time by individuals in positions of leadership. In such a context, it is hard to conceive how functionality and incapacity may alternate and co-exist, and how particular instances of incapacity might be established with a sufficient degree of specificity.

4 Conclusion

The Ongwen Trial Judgment offered an important opportunity to delineate the legal contours and articulate the operation of the mental incapacity defence before the icc. In most respects, the Trial Chamber did not take the opportunity that was before it to do so. This was most apparent in its treatment of the parties’ submissions in relation to the applicable burden of proof and its silence in relation to the submission that ‘severe impairment’ may meet the incapacity threshold set out in Article 31(1)(a) of the Rome Statute. Much uncertainty remains, therefore, as to whether any form of residual capacity is fundamentally incompatible with the destruction threshold, but also as to who bears the onus of establishing that threshold, and to which standard.

That being said, a number of lessons can be learned from the court’s assessment of the mental health evidence adduced at trial. The Trial Chamber did not allow itself to be bound by the selective willingness of the accused to be examined by various experts. It sent a clear signal as to the risks of malingering associated with an over-reliance on the clinical interview and a poor delineation between the roles of treating and forensic psychiatrists. Significantly, it emphasised the role of the court as the ultimate fact-finder with respect to mental incapacity and showed a clear willingness to rely on evidence beyond that of the mental health experts, incorporating corroborating or conflicting lay evidence. By contrast, it declined to address the place of culture in forensic psychiatry in the context of these particular kinds of crimes before international courts.

Importantly, having found that the evidence had not established that Ongwen suffered from the claimed disorders at the time of the relevant conduct, the Trial Chamber did not engage with the second limb of the defence, namely whether any such disorders had effectively destroyed Ongwen’s capacity within the meaning of Article 31(1)(a) of the Rome Statute. In this respect, it remains to be seen whether it is possible to relate alleged disorders forensically to particular crimes committed by a person over the course of many years. The Trial Chamber in the Ongwen case did not venture any assistance as to what such an exercise might entail, nor whether and how incapacity may co-exist with functionality over time. These questions reflect the unique nature of mass atrocity crimes and in future claims of mental incapacity no doubt will have to be confronted.

The issue of Ongwen’s mental capacity was a central and enduring feature of the proceedings, present at each stage of the process. Indeed, it was first raised in relation to his fitness to stand trial, then as a defence to the charges against him. It arose again in a third context, namely the sentencing proceedings that followed the guilty verdict. The Defence relied on Rule 145(2)(a)(i) of the Rules of Procedure and Evidence to submit that Ongwen’s substantially diminished mental capacity at the time of the offences ought to be considered as a mitigating circumstance in determining the appropriate sentence to be imposed.151 For largely the same reasons advanced in relation to the defence of mental incapacity, the Trial Chamber found that the evidence did not establish that Ongwen suffered from a mental disease or defect at the time of the offences that would warrant a mitigation of his sentence.152

On a broader level, the approach to the defence of mental incapacity in the Ongwen case is indicative of the inherent focus of international criminal law on individual responsibility. Amidst the extraordinary and collective circumstances of war, oppression and trauma153 that characterise the majority of the cases that come before international criminal courts and tribunals, the strong and almost irrebuttable presumption that remains is that of personal agency and capacity.

1

icc, The Prosecutor v Ongwen, icc-02/04-01/15, Trial Chamber, Judgment, 4 February 2021 (‘Ongwen Trial Judgment’). Dominic Ongwen was found not guilty of a further eight counts of war crimes and crimes against humanity.

2

Ibid., para.1.

3

icc, The Prosecutor v Ongwen, icc-02/04-01/15, Trial Chamber, Sentence, 6 May 2021 (‘Ongwen Sentencing Judgment’). Judge Panagalangan partly dissented, preferring to impose a sentence of 30 years’ imprisonment.

4

M. Drumbl, ‘Victims who Victimise’, 4(2) London Review of International Law (2016) 217–246, p. 234.

5

Human Rights Watch, Q&A on Joseph Kony and the Lord’s Resistance Army (21 March 2012), available online at Q&A on Joseph Kony and the Lord’s Resistance Army | Human Rights Watch (hrw.org) (accessed 1 December 2021); International Centre for Transitional Justice, From Rejection to Redress: Overcoming Legacies of Conflict-Related Sexual Violence in Northern Uganda (27 October 2015), available online at https://www.ictj.org/publication/rejection-redress-overcoming-legacies-conflict-sexualviolence-northern-uganda, p. 5; C.E. Bailey, ‘The Quest for Justice: Joseph Kony and the Lord’s Resistance Army’, 40 Fordham International Law Journal (2017) 247–328.

6

Ongwen Sentencing Judgment, supra note 3, para. 71.

7

Ibid., para. 72.

8

Ibid.

9

Ibid., para. 73.

10

Ibid., para. 76.

11

Ibid., para. 78.

12

Ongwen Trial Judgment, supra note 1, para. 3115.

13

Ibid., para. 3100.

14

International Criminal Court, Rome Statute (UN Doc. a/conf.183/9), Article 31(1)(a).

15

icc, The Prosecutor v Ongwen, icc-02/04-01/15, Defence Closing Brief, 13 March 2020, paras 551–674.

16

Rome Statute, supra note 14, Article 26 provides that ‘[T]he Court shall have no jurisdiction over any person who was under the age of 18 at the time of the alleged commission of a crime.’ By contrast, under Article 8(2)(b) of the Rome Statute, the conscription, enlisting or use of children in the hostilities only applies to children aged 15 or under, leading some to argue that there remains a ‘statutory gap’ for children aged 15 to 17 years, see D. Chaikel, ‘The icc’s Child Soldier Provisions: Time to Close the Three Year Gap’ International Justice Monitor (18 August 2015), available online at The icc’s Child Soldier Provisions: Time to Close the Three-Year Gap—International Justice Monitor (ijmonitor.org) (accessed 2 December 2021).

17

See L. Cakaj, The Life and Times of Dominic Ongwen, Child Soldier and lra Commander (12 April 2016), available online at https://justiceinconflict.org/2016/04/12/the-life-and-times-of-dominic-ongwen-child-soldier-and-lra-commander/ (accessed 1 December 2021).

18

Drumbl, supra note 4, pp. 223–4, referring to Primo Levi, Survival in Auschwitz: The Nazi Assault on Humanity (Simon & Schuster, New York, NY, 1993).

19

Rome Statute, supra note 14, Article 31(1)(b); see generally M. Krabbe, Excusable Evil: An Analysis of Complete Defenses in International Criminal Law (Intersentia, Antwerp, 2014).

20

Ongwen Trial Judgment, supra note 1, paras 909–939.

21

See I. Mann, ‘Eichmann’s Mistake: The Problem of Thoughtlessness in International Criminal Law’ 33(1) Canadian Journal of Law and Jurisprudence (2020) 145–181, p 154, who noted that it may be ‘unjust to convict individuals whose entire environment and upbringing make it impossible for them to see the otherwise criminal activity as anything but the fulfilment of civic duty’.

22

Drumbl, supra note 4, p. 240; A. Branch, ‘Dominic Ongwen on Trial: The icc’s African Dilemmas’, 11 International Journal of Transitional Justice (2017) 30-–49, pp. 38–40.

23

Drumbl, supra note 4, p. 241.

24

icc, Prosecutor v Lubanga, icc-01/04-01/06, Trial Chamber, Decision on Sentence Pursuant to Article 76 of the Statute, 10 July 2012, paras 38–44; see also I. Derluyn, W. Vandenhole, S. Parmentier and C. Mels, ‘Victims and / or Perpetrators? Towards an Interdisciplinary Dialogue on Child Soldiers’, 15 BMC International Health and Human Rights (2015) 15–28.

25

icc, Prosecutor v Ongwen, icc-02/04-01/15-T-258-Red-eng wt 12-03-2020 15/93 nb t, Transcript of the Defence Closing Arguments, p. 15–16.

26

See A.J. Vautravers, ‘Why Child Soldiers are Such a Complex Issue’, 27(4) Refugee Survey Quarterly (2009) 96–107.

27

R. N. Souris, ‘Child Soldiering on Trial: An Interdisciplinary Analysis of Responsibility in the Lord’s Resistance Army’, 13(3) International Journal of Law in Context (2017) 316–335, p. 317.

28

icc, Prosecutor v Ongwen, icc-02/04-01/15-T-258-Red-eng wt 12-03-2020 15/93 nb t, Transcript of the Defence Closing Arguments, p. 72.

29

Ibid., p. 8.

30

Ibid.

31

icty, Prosecutor v Strugar, it-01-42-A, Appeals Chamber, Judgment, 17 July 2008 (‘Strugar Appeal Judgment’), para. 41; see I. Freckelton and M. Karagiannakis, ‘Unfitness to Stand Trial: The Authoritative Strugar Decision in the International Criminal Tribunal for the Former Yugoslavia’, 21 Psychiatry, Psychology and Law (2014) 611–621.

32

The Appeals Chamber in Strugar affirmed that the capacities to be evaluated included the capacity to plead, to understand the nature of the charges, to understand the course of the proceedings, to understanding the details of the evidence, to instruct counsel, to understand the consequences of the proceedings and to testify, Strugar Appeal Judgment, supra note 31, para. 41.

33

Ibid., para. 55; icty, Prosecutor v Mladić, mict-13-56-A, Appeals Chamber, Public Redacted Version of the “Decision on a Motion to Vacate the Trial Judgement and to Stay Proceedings” Filed on 30 April 2018’, 8 June 2018, p. 3; icc, The Prosecutor v. Gbagbo, icc-02/11-01/11-286-Red, Pre-Trial Chamber, Decision on the Fitness of Laurent Gbagbo to Take Part in the Proceedings before this Court, 2 November 2012, para. 43; The Prosecutor v Gbagbo and Blé Goudé, icc-02/11-01/15–349, Trial Chamber, Decision on the Fitness of Laurent Gbagbo to Stand Trial, 27 November 2015, para. 33; see I. Freckelton and M. Karagiannakis, ‘Fitness to Stand Trial Under International Criminal Law’, in R. McKay and W. Brookbanks (eds), Fitness to Plead: International and Comparative Perspectives (Oxford University Press, Oxford, 2018), chapter 13; I. Freckelton and M. Karagiannakis, ‘Fitness to Stand Trial under International Criminal Law: Challenges for Law and Policy’, 12 Journal of International Criminal Justice (2014) 705–729; I. Freckelton and M. Karagiannakis, ‘Post-traumatic Stress Disorder and Hospitalisation Syndrome as Potential Aetiologies of Unfitness to Stand Trial: The Gbagbo Decision’, 21(5) Psychiatry, Psychology and Law (2014) 645–657.

34

Strugar Appeal Judgment, supra note 31, para. 60; The same standard applies mutatis mutandis to appellate proceedings, see icty, Prosecutor v. Popović et al, Case No. it-05-88-A, Appeals Chamber, Public Redacted version of 30 November 2012 Decision on Request to Terminate Appellate Proceedings in Relation to Milan Gvero, 16 January 2013, para. 21. In a commentary on the case of Deputy-General Prosecutor v Nahak (1 March 2005, Judge Rapoza), Freckelton and Karagiannakis argue that rationality may be an appropriate ‘determinant of the sufficiency of understanding’, I. Freckelton and M. Karagiannakis, ‘Fitness to Stand Trial in International Criminal Law: The Ramifications of a Landmark East-Timor Decision’ 21(3) Psychiatry, Psychology and Law (2014) 321–332, p. 329.

35

icc, Prosecutor v Ongwen, icc-02/04-01/15-T-26-eng et, Transcripts of the Hearing of 6 December 2016, pp 17–24; icc, Prosecutor v Ongwen, icc-02/04-01/15, Trial Chamber, Decision on the Defence Request to Order a Medical Examination of Dominic Ongwen, 16 December 2016.

36

Rome Statute, supra note 14, Article 31(1)(a); see I. Freckelton and M. Karagiannakis, ‘Insanity under International Criminal Law’, in R. McKay and W. Brookbanks (eds), Insanity: International and Comparative Perspectives (Oxford University Press, Oxford, 2022, in press).

37

Ongwen Trial Judgment, supra note 1, pp.867 ff.

38

Rome Statute, supra note 14, Article 31(1)(a).

39

R. Cryer, D. Robinson and S. Vasiliev, An Introduction to International Criminal Law and Procedure, 4th edn. (Cambridge University Press, Cambridge, 2019), p. 383; Freckelton and Karagiannakis, supra note 36.

40

International Criminal Court, Policy Paper of Case Selection and Prioritisation (15 September 2016), p. 14.

41

M. Scallioti, ‘Defences before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility—Part 2’, 2 International Criminal Law Review (2002) 1–46, p. 16.

42

I. Xavier, ‘The Incongruity of the Rome Statute Insanity Defence and International Crime’, 4 Journal of International Criminal Justice (2016) 793–814, p. 797.

43

High Court of Australia, R. v Porter (1933) 55 clr 182, 1 February 1933, p. 186 (Dixon J.).

44

P. Krug, ‘The Emerging Mental Incapacity Defense in International Criminal Law: Some Initial Questions of Implementation’. 94 American Journal of International Law (2000) 317–335, p. 319.

45

J. Tobin, ‘The Psychiatric Defence and International Criminal Law’. 23(2) Medicine, Conflict and Survival (2007), 111–124, p. 112.

46

Ibid.; Krug, supra note 44, p. 319; see also A. Cassese, ‘The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice’, 25 Leiden Journal of International Law (2010) 491–501, p. 492.

47

General Assembly, Report of the Preparatory Committee on the Establishment of an International Criminal Court (ga 51st Session, Supp. No.22, A/51/22 (1996) Vol. ii), p. 514.

48

J. Harder, ‘A Future Perspective on the Disposition of the Insane and the Unfit to Stand Trial in the International Criminal Court’, 8 New Zealand Yearbook of International Law (2010) 145–163, p. 154.

49

On this issue, see Freckelton and Karagiannakis, supra note 34; Harder, supra note 48, p. 149; Krug, supra note 44, p. 334.

50

Special Court of Amsterdam, Trial of Wilhelm Gerbsch (Case No 78, 28 April 1948), Law Reports of Trials of War Criminals, Vol xiii, pp 131–132; see also M. Lippman, ‘Prosecution of Nazi War Criminals Before Post-World War ii Domestic Tribunals’, 8 University of Miami International and Comparative Law Review (2000), 1–113, p. 12.

51

Ibid., pp. 132, 137.

52

Ibid.

53

United Nations, Statute of the International Criminal Tribunal for the Former Yugoslavia (Doc s/res/827); United Nations, Statute of the International Criminal Tribunal for Rwanda (Doc S/1994/1115).

54

United Nations, Report of the Secretary-General Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993) (UN Doc. S/25704), para. 58.

55

icty, Prosecutor v Delalić et al, it-96-21-T, Trial Chamber, Judgment, 16 November 1998, para. 1166 (Delalić Trial Judgment); icty, Prosecutor v Delalić et al, it-96-21-A, Appeals Chamber, Judgment, 20 February 2001, paras 586 and 590 (Delalić Appeal Judgment).

56

Delalić Trial Judgment, supra note 55, paras 1163–1168, referring to House of Lords, R v M’Naghten (1843) 8 er 718, 19 June 1843. See C.P. Ewing, Insanity: Murder, Madness and the Law (oup, 2008); S. Yannoulidis, Mental State Defences in Criminal Law (Routledge, Abingdon, 2016); R. Moran, Knowing Right from Wrong” The Insanity Defense of Daniel McNaughten (Simon & Schuster, New York, NY, 2000); P. Handler, H. Mares and I. Williams, Landmark Cases in Criminal Law (Bloomsbury, London, 2017) pp. 141ff.

57

Delalić Appeal Judgment, supra note 55, para. 590; see also icty, Prosecutor v Vasiljević, it-98-32-T, Trial Chamber, Judgment, 28 November 2002, para. 282 (Vasiljević Trial Judgment).

58

Delalić Trial Judgment, supra note 55, para. 1166, endorsing the language of the Homicide Act 1957, s. 2.

59

Ibid., para. 1156, where the Trial Chamber held that ‘the plea of diminished responsibility is based on the premise that, despite recognising the wrongful nature of his actions, the accused, on account of his abnormality of mind, is unable to control his action’.

60

Ibid., para. 1186.

61

Ibid., paras 1181–1184.

62

Delalić Appeal Judgment, supra note 55, para. 594.

63

Ibid.

64

Vasiljević Trial Judgment, supra note 57, para. 283, referring to Article 31(1)(a) of the Rome Statute.

65

Ibid., para. 286.

66

Ibid., paras 289–293.

67

Ibid., para. 294.

68

icty, Prosecutor v Jelisić, it-95-10-T, Trial Chamber, Judgment, 14 December 1999, para. 125.

69

Delalić Appeal Judgment, supra note 55, para. 582; see also icty, Delalić Trial Judgment, supra note 55, para. 1157.

70

United Nations, Draft Statute for the International Criminal Court (UN Doc. a/conf.183/2/Add.1), Article 31(1)(a).

71

Article 20 of the Rome Statute (Ne Bis in Idem) prohibits the prosecution of individuals for crimes for which the person has already been convicted or acquitted by another court, except in circumstances where the proceedings before that other court were either designed to shield the person from criminal responsibility or were not conducted impartially or independently.

72

The expression ‘mental disease or defect’ appears in a number of state criminal laws in the United States and figured in the American Law Institute’s Model Criminal Code § 4 (Tent. Draft No. 5, 1956). It is generally used as a compound expression and excludes an abnormality manifested by repeated criminal or otherwise anti-social conduct: see, e.g., Durham v. United States, 214 F. 2d 862 (D.C. Cir) 1954, ‘An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect’, pp. 874–875; E. Campbell, ‘The Psychopath and the Definition of “Mental Disease or Defect” under the Model Penal Code Test of Insanity: A Question of Psychology or a Question of Law’, 69(1) Nebraska Law Review (1990) 190–229; L.Z. Freedman, M.Guttmacher and W. Overholser, ‘Mental Disease or Defect Excluding Responsibility’, Washington University Law Quarterly (1961) 250–254, p. 253; H. Fingarette, ‘The Concept of Mental Disease in Criminal Law Insanity Tests’, 33 University of Chicago Law Review (1966) 229–248; C.S. Norris, ‘Offenders with Mental Disease or Defect: Implications of Recent Federal Law,’ 5(3) Journal of Forensic Psychology (1987) 21–32.

73

For a discussion of the adoption of Article 31(1)(a) in its current formulation, see Scaliotti, supra note 41, pp. 22–28; see also Harder, supra note 48, p. 152.

74

General Assembly, Report of the Preparatory Committee on the Establishment of an International Criminal Court (G.A. 51st Session, Supp. No.22, A/51/22, 1996, Vol. ii), pp. 513–514.

75

Harder, supra note 48, p. 154; W. Schabas, An Introduction to the International Criminal Court, 3rd edn. (Cambridge University Press, Cambridge, 2007), p. 227.

76

Scaliotti, supra note 41, p. 26; K. Ambos, Treatise on International Criminal Law: Volume 1: Foundations and General Part (Oxford University Press, Oxford, 2021), p. 431.

77

Harder, supra note 48, p. 153.

78

S. Janssen, ‘Mental Condition Defences in Supranational Criminal Law’, 4 International Criminal Law Review (2004) 83–98, p. 85.

79

House of Lords, R v M’Naghten (1843) 8 er 718, 19 June 1843, p. 722.

80

Xavier, supra note 42, p. 801; see also Scaliotti, supra note 41, p. 17.

81

See, e.g., I.K. Packer, ‘Post-traumatic Stress Disorder and the Insanity Defense: A Critical Analysis’, 11 Journal of Psychiatry and Law (1983) 125–136; R. Slovenko, ‘Posttraumatic Stress Disorder and the Insanity Defense’, 151 American Journal of Psychiatry (1994) 152–153; P.S. Appelbaum, R.Z. Jick, T. Grisso, D. Givelber, E. Silver and H.J. Steadman, ‘Use of Posttraumatic Stress Disorder to Support an Insanity Defense’, 150 American Journal of Psychiatry (1993) 229–234; L.F. Sparr and R.M. Atkinson, ‘Posttraumatic Stress Disorder as an Insanity Defense: Medicolegal Quicksand’, 143 American Journal of Psychiatry (1986) 608–613.

82

American Psychiatric Association, Diagnostic and statistical manual of mental disorders, 5th edn. (American Psychiatric Association, Arlington, VA, 2013), pp. 271–272.

83

See F.L. Schiavone, P. Frewen, M. McKinnon and R.A. Lanius, ‘The Dissociative Subtype of ptsd: An Update of the Literature’, 29 PTSD Research Quarterly (2018) 59–69.

84

See D.J. Stein, K.C. Koenen, M.J. Friedman, E. Hill, K.A. McLaughlin, M. Petukhova, A. Meron Ruscio, V. Shahly, D. Spiegel, G. Borges, B. Bunting, J.M. Caldas-de-Almeida, G. de Girolamo, K. Demyttenaere, S. Florescu, J.M. Haro, E.G. Karam, V. Kovess-Masfety, S. Lee, H. Matschinger, M. Mladenova, J. Posada-Villa, H. Tachimori, M.C. Viana and R.C. Kessler, ‘Dissociation in Posttraumatic Stress Disorder: Evidence from the World Mental Health Surveys’, 73(4) Biological Psychiatry (2013) 302–312; E.J. Wolf, M.W. Miller, A.F. Reardon, K.A. Ryabchenko, D. Castillo and R. Freund, ‘A Latent Class Analysis of Dissociation and Posttraumatic Stress Disorder: Evidence for a Dissociative Subtype’, 69(7) Archives of General Psychiatry (2012) 698–705.

85

See R.A. Bryant, ‘Does Dissociation Further our Understanding of ptsd?’, 21(2) Journal of Anxiety Disorders (2007) 183–191.

86

dsm-5, American Psychiatric Association, supra note 82, p. 292; see B.L. Brand, V. Sar, P. Stavropoulos, C. Krüger, M. Korzekwa, A. Martínez-Taboas and W. Middleton, ‘Separating Fact from Fiction: An Empirical Examination of Six Myths About Dissociative Identity Disorder’, 24(4) Harvard Review of Psychiatry (2016) 257–270; N.-E. Hegher and C.-G. Schiopu, ‘Psychiatric Expertise and Forensic Management in Cases of Dissociative Identity Disorder’, RAIS Journal for Social Sciences (2021), doi: 10.5281/zenodo.5722204.

87

See e.g.in the United States Kirkland v State, 304 se 2d 561 (1983); State v Grimsley 444 ne 2d 1071 (1982); compare State v Milligan, No 77-cr-11–2908) Franklin County, Ohio, 4 December 1978).

88

See, e.g., State v Greene, 960 P 2d 980 (1998); State v Lockhart, 208 W Va 622 (2000).

89

See J. Dawson, ‘The Alter as Agent: Multiple Personality and the Insanity Defence’, 6 Psychiatry, Psychology and Law (1999) 203–206. See also D. James, ‘Multiple Personality Disorder in the Courts: A Review of the North American Experience’, 9 Journal of Forensic Psychiatry (1998) 339–361; H.M. Farrell, ‘Dissociative Identity Disorder: No Excuse for Criminal Activity’, 10(6) Current Psychiatry (2011) 33–37; J. Paris, ‘Dissociative Identity Disorder: Validity and Use in the Criminal Justice System’, 25 British Journal Psychiatry (2019) 287–293.

90

Ongwen Trial Judgment, supra note 1, para. 2452.

91

Ongwen Trial Judgment, supra note 1, para. 2453.

92

icc, Prosecutor v Ongwen, icc-02/04-01/15, Common Legal Representative of Victims’ Closing Brief, 28 February 2020, para. 151.

93

The Defence argued that it was for the Prosecution to disprove the defence of mental incapacity beyond reasonable doubt. By contrast, the Prosecution submitted that the Defence bore the burden to establish the defence on the balance of probabilities. Ongwen Defence Closing Brief, supra note 15, paras 529–534; icc, Prosecutor v Ongwen, icc-02/04-01/15, Prosecution Closing Brief, 24 February 2020, para. 380. See also icc, Prosecutor v Ongwen. icc-02/04-01/15–1494, Trial Chamber, Decision on Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute, 5 April 2019.

94

Ongwen Trial Judgment, supra note 1, para. 2455.

95

Delalić Appeal Judgment, supra note 55, para. 582.

96

Delalić Trial Judgment, supra note 55, para. 1158; see also G. Sluiter, ‘Human Rights Protection in the icc Pre-trial Phase’, in C. Stahn and G. Sluiter (eds), The Emerging Practice of the International Criminal Court (Brill-Nijhoff, Leiden, 2009), pp. 459–475, p. 462; William Schabas, The International Criminal Court: A Commentary on the Rome Statute, 2nd edn. (Oxford University Press, Oxford, 2016), pp. 1048–1049.

97

icc, Prosecutor v Ongwen, icc-02/04-01/15, Prosecution Response to the “Defence Request for the Chamber to Issue an Immediate Ruling Confirming the Burden and Standard of Proof Applicable to Articles 31(1)(a) and (d) of the Rome Statute, 7 February 2019, para. 21.

98

Ibid, paras 5–6.

99

Ongwen Trial Judgement, supra note 1, para. 2456.

100

Ibid.

101

Ongwen Defence Closing Brief, supra note 15, para. 536.

102

Ibid., paras 537, 547.

103

Ibid., para. 552.

104

Ongwen Prosecution Closing Brief, supra note 93, para. 372; Ongwen Common Legal Representative of Victims’ Closing Brief, supra note 92, paras 160, 166.

105

Rome Statute, supra note 14, Article 69(4) provides as follows: ‘The Court may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to a fair trial or to a fair evaluation of the testimony of a witness, in accordance with the Rules of Procedure and Evidence.’ See A. Appazov, Expert Evidence and International Criminal Justice (Springer International, Cham, 2016), pp. 23–62.

106

icc Rules of Procedure and Evidence, r 135; See also Regulation 44 of the Regulations of the Court (U.N. Doc. icc-bd/01-01-04).

107

Ongwen Trial Judgment, supra note 1, para. 2578.

108

Ongwen Defence Closing Brief, supra note 15, para. 553.

109

Ongwen Trial Judgment, supra note 1, para. 2524.

110

Ongwen Defence Closing Brief, supra note 15, para. 553.

111

Ibid., para. 560.

112

Ibid., paras 562–564.

113

Ibid., para. 539.

114

icc, Prosecutor v Ongwen, icc-02/04-01/15-T-163, Transcript of Professor Mezey’s evidence, pp. 86–87; icc, Prosecutor v Ongwen, icc-02/04-01/15-T-169, Transcript of Professor Weierstall-Pust’s evidence, pp. 36–37; icc, Prosecutor v Ongwen, icc-02/04-01/15-T-166, Transcript of Dr Abbo’s evidence, pp. 32–36.

115

icc, Prosecutor v Ongwen, icc-02/04-01/15-T-169, Transcript of Professor Weierstall-Pust’s evidence, pp. 24–27.

116

icc, Prosecutor v Ongwen, icc-02/04-01/15-T-166, Transcript of Dr Abbo’s evidence, pp. 22–23.

117

icc, Prosecutor v Ongwen, icc-02/04-01/15-T-169. Transcript of Professor Weierstall-Pust’s evidence, p. 32; icc, Prosecutor v Ongwen, icc-02/04-01/15-T-163, Transcript of Professor Mezey’s evidence, p. 19; icc, Prosecutor v Ongwen, icc-02/04-01/15-T-166, Transcript of Dr Abbo’s evidence, p. 57.

118

Ongwen Trial Judgment, supra note 1, para. 2469.

119

Ibid., paras 2517–2519.

120

Ibid., para. 2580.

121

Ibid., para. 2537.

122

Ibid, paras 2537–2538.

123

Ibid., paras 2540–2542.

124

Ibid., para. 2543.

125

Ibid., para. 2559.

126

Ibid., para. 2563.

127

Ibid, para. 2562.

128

Ibid, paras 2545–2549.

129

Ibid., para. 2560.

130

Ibid, para. 2545.

131

Ongwen Prosecution Closing Brief, supra note 93, para. 373.

132

Ibid., para. 374; Ongwen Trial Judgment, supra note 1, para. 2528.

133

Ongwen Trial Judgment, supra note 1, para. 2531.

134

Ongwen Prosecution Closing Brief, supra note 93, para. 374; Ongwen Trial Judgment, supra note 1, para. 2531.

135

icc, Prosecutor v Ongwen, Prof Weierstall-Pust’s Rebuttal Report, uga-otp-0287-0072, p. 27.

136

Ongwen Trial Judgment, supra note 1, paras 2532–2535.

137

Ibid., para. 2533.

138

See, e.g., M. Crespo and M Mar Gomez, ‘Diagnostic Concordance of dsm-iv and dsm-5 Posttraumatic Stress Disorder (ptsd) in a Clinical Sample’, 28 Psicothema (2016) 161–166; A. Pai, A.M Suris and C.S North, ‘Posttraumatic Stress Disorder in the dsm-5; Controversy, Change, and Conceptual Considerations’, 7 Behavioral Sciences (2017), doi: 10.3390/bs7010007; A. Maheux and M. Price, ‘Investigation of the Relation Between ptsd Symptoms and Self-Compassion: Comparison Across dsm iv and dsm 5 ptsd Symptom Clusters’, 14 Self and Identity (2015) 627–637; C.W Hoge, R. Yehuda, C.A Castro, A.C. McFarlane, E. Vermetten, R. Jetly, K.C. Koenen, N. Greenberg, A.Y. Shalev, S.A.M. Rauch, C.R. Marmar and B.O. Rothbaum, ‘Unintended Consequences of Changing the Definition of Posttraumatic Stress Disorder in dsm-5: Critique and Call for Action’, 73(7) JAMA Psychiatry (2016) 750–752; I. Freckelton, Expert Evidence: Law, Practice, Procedure and Advocacy, 7th edn. (Thomson Reuters, Sydney, NSW, 2023, forthcoming).

139

Ongwen Trial Judgment, supra note 1, para. 2524.

140

Ibid., paras 2535–2551.

141

Ongwen Defence Closing Brief, supra note 15, paras 661–662.

142

Ibid., paras 661–663.

143

Ongwen Trial Judgment, supra note 1, paras 2460–2461.

144

Ibid., para. 2461.

145

See for instance, J. Mezzich, L.J. Kirmayer, A. Kleinman, H. Fabrega Jr, D.L. Parron, B.J. Good, K.M. Lin and S.M. Manson, ‘The Place of Culture in dsm-iv’, 187 Journal of Nervous and Mental Disorder (1999) 457–464, p. 460.

146

Harder, supra note 48, p. 155.

147

Ongwen Defence Closing Brief, supra note 15, para. 537.

148

Ibid., paras 565–570.

149

Ibid., para. 560.

150

Ongwen Trial Judgment, supra note 1, paras 2570–2573.

151

icc, Prosecutor v Ongwen, icc-02/04-01/15, Public Redacted Version of the Corrected Version of Defence Brief on Sentencing, Defence Sentencing Submissions, 4 April 2021, paras 85–101.

152

Ongwen Sentencing Judgment, supra note 3, para. 100.

153

See, for instance D. Radosavljevic, ‘Scope and Limits of Psychiatric Evidence in International Criminal Law’, 13 International Criminal Law Review (2013) 1013–1035, pp. 1022–1023.

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