Statue of Lady Justice holding scales

School of Law Co-Dean Michael Scharf will present before International Criminal Court in The Hague

Michael Scharf

Case Western Reserve University School of Law Co-Dean Michael Scharf has been invited to present an amicus curiae (friend of the court) argument before the Appeals Chamber of the International Criminal Court (ICC) in The Hague on Feb. 14. 

It is uncommon for the ICC to invite outside counsel to present arguments, and rarer still for an American attorney to be granted the opportunity to do so, Scharf said.

The invitation to present before the ICC arose from an amicus brief that Scharf and his colleagues at the Public International Law and Policy Group (PILPG) submitted in December 2021. The brief concerns the application of the insanity defense in the case of The Prosecutor v. Dominic Ongwen. 

Ongwen, the 45-year-old defendant, had been kidnapped by the Lord’s Resistance Army in northern Uganda as an 8-year-old and forced to become a child soldier. Over the years, Ongwen rose through the ranks, becoming one of the insurgent group’s top commanders.

At trial, the defense presented expert testimony that as a result of Ongwen’s forcible indoctrination into 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’s defense team failed to meet the burden of proving mental disease or defect and sentenced him to 25 years for war crimes and crimes against humanity including murder, rape and sexual enslavement.

In his appearance before the ICC, Scharf will address a core question: Who has the burden of proof for the insanity defense—the prosecutor or defendant—in cases before the court? 

“We are hoping that the Appeals Chamber will adopt the two-step process we are advocating,” Scharf said. “First, the accused must adduce sufficient evidence to establish the existence of mental disease or defect. Once the accused meets that low evidentiary threshold, the prosecution thereafter bears the ultimate burden of proof; that is, to prove that the evidence adduced by the accused does not establish a reasonable doubt as to the accused’s guilt.”

This is the second amicus brief Scharf and his PILPG colleagues have penned for the ICC Appeals Chamber. Scharf co-founded PILPG, a global pro bono legal firm involved in peace negotiations, drafting post-conflict constitutions, and war crimes prosecution/transitional justice, 25 years ago and continues to head its amicus brief practice.

Scharf equates the honor of arguing before the ICC to that of presenting before the U.S. Supreme Court.

“It has long been one of my dreams to argue before the International Criminal Court,” said Scharf, who has written 20 books about international criminal law and participated in the creation of the Yugoslavia War Crimes Tribunal.

“The Appeals Chamber of the ICC is the highest international criminal court in the world. For a professor who focuses on international criminal law, there is no greater privilege,” Scharf said. “Only a handful of law professors across the world have had the opportunity.”

The Appeals Chamber is likely to render its judgment in spring 2022.

Watch Scharf’s oral argument live via livestream on Monday, Feb. 14, from 8:45 to 9:15 a.m. ET.