Judges Defer Decision on Evidence Required to Prove Mental Disease and Duress Defense

Judges of the International Criminal Court (ICC) have deferred a decision on the amount and the quality of evidence Dominic Ongwen’s lawyers need to present to prove he is not responsible for the crimes he has been charged with.

Ongwen’s lawyers had asked Trial Chamber IX to make “an immediate ruling” on the issue of the burden of proof they needed to satisfy and what standard of proof they needed to meet as they lay out their case before the chamber. The defense phase of Ongwen’s trial began in September last year.

The defense have invoked two sections of Article 31 of the ICC’s founding law, the Rome Statute, as the basis for their case. Ongwen has been charged with 70 counts of war crimes and crimes against humanity he is alleged to have committed between July 2002 and December 2005 as a commander of the Lord’s Resistance Army.

“The Chamber encourages the Defence to put forward all the evidence it has in support of the grounds for excluding criminal responsibility it has raised. It notes that the Defence is already presenting such evidence and trusts that it will continue to do so throughout the presentation of its case,” said Trial Chamber IX in its unanimous April 5 decision.

Three judges form Trial Chamber IX. They are judges Bertram Schmitt (presiding), Péter Kovács, and Raul C. Pangalangan.

“Apart from that, the Chamber has previously stated that its interpretations of the applicable law will be set out in its judgement. Accordingly, it does not consider that further explanations are warranted at this point in the proceedings,” said the judges.

Ongwen’s trial is the first time the provisions of Article 31 have been invoked at the ICC. The article lays out the grounds an accused person can argue to show they were not responsible for the crimes they have been charged with. In August 2016, Ongwen’s lawyers notified the court that in Ongwen’s defense they would be using two provisions under Article 31: mental disease or defect; and duress. They also gave notice of an alibi Ongwen had, but alibis come under different legal provisions at the ICC.

The defense filed their request for a ruling on the issue of the burden and standard of proof in relation to Article 31 on January 28. The prosecution and the Common Legal Representative for Victims (CLRV) filed their responses on February 7. A summary of these three submissions can be found here.

A further submission from the defense was filed on February 26. This was after the defense applied for leave to respond to the prosecution’s and CLRV’s submissions, which Judge Schmitt granted.