La defensa de incapacidad mental en el Estatuto de la Corte Penal Internacional y su posible aplicación en el caso contra Dominic Ongwen

Abstract

Dominic Ongwen - one of the four Lieutenants of the Lord's Resistance Army (LRA) -, currently is being prosecuted by the ICC for crimes against humanity and war crimes, including attempted murder, torture, cruel treatment, inhumane acts, slavery, attacks against personal dignity, looting, destruction of property and persecution. Due to the fact that Dominic Ongwen was abducted and subjected to a brutal training at the age of ten (10) by the group of which he later became, until his detention, a Lieutenant (the highest position in the LRA below the Commander-in-Chief Joseph Kony), the Defense has alleged, pursuant to article 31(1)(a) of the ICC Statute, the defense of mental insanity. Article 31(1)(a) of the ICC Statute provides the following two elements of the mental insanity defense: (i) the existence of a disease or mental defect (including its severity and its development over time); and (ii) that such disease or defect caused, at the time in which the alleged crimes were committed, the deprivation of the defendant´s capacity (a) “to appreciate the unlawfulness or nature of his conduct”; or (b) “to control his conduct according to the requirements of law”. Insanity constitutes an excluding circumstance only if both elements are fully proven by the Defense. If only one of these elements is partially proven, insanity may only be considered as a mitigating circumstance or factor in the sentence.