Dean Scharf Presents Amicus Argument Before the International Criminal Court

Dean Scharf at ICC
Dean Scharf at ICC
CWRU School of Law Co-Dean Michael Scharf presents amicus argument at ICC.

Case Western Reserve University School of Law Co-Dean Michael Scharf presented an amicus argument before the Appeals Chamber of the International Criminal Court (ICC) in The Hague on February 14. Scharf was asked by the Court to address “who has the burden of proof for the insanity defense—the prosecutor or defendant—in cases before the ICC?”

The ICC Appeals Chamber invited Scharf, who has authored 20 books on international criminal law, and his colleagues at the Public International Law and Policy Group (PILPG) to submit an amicus brief on the application of the insanity defense in the case of The Prosecutor v. Dominic Ongwen. Scharf co-founded PILPG 25 years ago and continues to serve as head of the NGO’s international amicus practice area.

International Criminal Court courtroom
Courtroom at the ICC

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.

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.

ICC Judge poses questions to Co-Dean Michael Scharf about his amicus argument
The ICC judge questions Co-Dean Michael Scharf about his amicus argument.

At the Hague, Scharf argued that the provisions of the ICC’s statute, read in the context of the statute’s negotiating history, should be interpreted as requiring the defense to produce evidence supporting the insanity defense but thereafter requiring the prosecution to prove that the evidence adduced regarding mental disease or defect does not raise a reasonable doubt as to the guilt of the accused. Scharf did not take a position on whether this heightened burden on the prosecution would alter the outcome of the case.  

“Being invited to submit an amicus brief to the Appeals Chamber of the ICC is a rare privilege,” Scharf told Crain’s Cleveland Business. It’s even rarer to be invited to present an amicus argument in person, and Scharf is one of just a handful of Americans ever to have had the opportunity to argue before the Appeals Chamber of the ICC. 

Scharf’s amicus brief in the Ongwen case is available on the ICC’s website. The Appeals Chamber is likely to render its judgment in fall 2022.