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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