Groningen Journal of International Law

International Law Under Construction


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The ‘Mental Disorder’ Defence in Prosecutor v Ongwen

Marina Fortuna

Introduction

On 4 February 2021 the Trial Chamber IX of the International Criminal Court (ICC) issued its judgment in the Prosecutor v. Dominic Ongwen. The case concerns the events which occurred in Northern Uganda between 1 July 2002 and 31 December 2005 for which Ongwen was charged with 70 counts of war crimes and crimes against humanity, 66 of which he was found guilty for.

During the proceedings, the Defence Counsel raised the defence of mental disease (or defect), provided for in Article 31(1)(a) of the ICC Statute as a ground for excluding Ongwen’s responsibility. The judgment’s course of proceedings and the Trial Chamber’s reasoning addresses important procedural and evidentiary issues concerning the ICC’s mental disease defence. This contribution discusses two of them: the procedural issues concerning the burden and standard of proof and the evidentiary issues concerning the expert reports and psychological/psychiatric examination.

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Learning to Protect the Interests of Peace

By Amin Sadri |amin.sadri@emory.edu 

In September 2007, the Office of the Prosecutor (OTP) for the International Criminal Court (ICC) set out its understanding of the concept of the interests of justice. The OTP made three points clear: there is a presumption to investigate and exercising the discretion not to do so is exceptional in nature, that the criteria are guided by the objects and purposes of the statute, and that the OTP is predominantly focused on the interests of justice and that the interests of peace “falls within the mandate of institutions other than the [OTP].” However, as the very first paragraph of their 2007 policy paper makes clear, “This is a policy document of the Office of the Prosecutor […] and is subject to revision based on experience and in the light of legal determinations by the Chambers of the Court.” Continue reading


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The Challenges of Prosecuting Wars of Aggression

By Benjamin Dürr | mail@benjamin-duerr.de

Twenty years after its creation, the International Criminal Court (ICC) is on the verge of gaining jurisdiction over a new crime, enabling the court to prosecute high-level individuals for waging war. During the annual Assembly of States Parties in December, the ICC’s member states decided to activate the ICC’s jurisdiction over the crime of aggression as of 17 July 2018 – twenty years after the court’s founding treaty, the Rome Statute, entered into force. While the activation is seen as a historic step in international law, the political compromises that enabled it raise doubts about the applicability of jurisdiction over the new crime.

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