Getting Disability and Reasonable Accommodation Right: What Went Wrong in the Ongwen Case and the Need for a Presumption of Mental Disability for Defendants

Mr. Dominic Ongwen (“Mr. Ongwen”) is the first ICC defendant to assert an affirmative defence, under Article 31, for exclusion of criminal responsibility, based on mental disease or defect and on duress. This was a complete defence against the 70 charges and seven modes of liability confirmed against him in the Confirmation of Charges (“COC”) decision. In February 2021, the Trial Chamber (“Chamber” or “Court”) convicted Mr. Ongwen of 61 counts and two modes of liability and sentenced him to 25 years’ imprisonment in May 2021. In December 2022, the Appeals Chamber affirmed the Trial Judgment and Sentence. The Ongwen case illustrates the lacunae in the ICC’s implementation of its obligation to reasonably accommodate mentally disabled defendants and to provide them with equal access to justice. I posit that the Trial Chamber was obstructed by a mental disability blindspot, which resulted in the denial of Mr. Ongwen’s fair trial rights. To remedy this problem, I propose that the ICC make available to a defendant, if s/he should choose to invoke it, a presumption of mental disability, based on the reality that the mass trauma in the ICC “situations” does not discriminate in its victims.