Dr Felicity Gerry KC’s Amici brief in the Ongwen Appeal at the International Criminal Court
The decision in the Dominic Ongwen Appeal was handed down on Thursday 15 December 2022. All of his grounds of appeal were dismissed. However, one judge recognised the importance of the non-punishment principle for former child soldiers from the Amici brief observations submitted by Dr Felicity Gerry KC who attended the appeal hearing and led a group of practitioners and academics in submitting the brief. In paragraph 107 of the Partly Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza referred to the observations of Gerry et al as follows:
107. Gerry et al., drawing upon their expertise in modern slavery law and criminal responsibility, submitted that “‘non-punishment’ of victims of modern slavery/human trafficking includes the non-liability of former child soldiers who commit crimes when they continue to suffer the effects of their victimhood through compromised mental health”.They noted that the Trial Chamber “did not consider or express any legal principles for evaluating the effect of being a child soldier nor the mental health nexus” in the trial or sentencing phases.They discussed “the need to recognise the long-term effects of being a child soldier”.They stressed the importance of applying relevant legal principles to the question of Mr Ongwen’s criminal responsibility in light of the fact that he was “made into a child soldier by the means and purposes of others” and that he “suffered as a consequence”.
Non punishment of victims of human trafficking / modern slavery is an emerging norm in criminal law and remains an important issue for prosecutors to consider when seeking to prosecute former child soldiers and other victim perpetrators.
You can read the Amici observation here https://www.icc-cpi.int/court-record/icc-02/04-01/15-1929
You can read about the Ongwen appeal here https://www.icc-cpi.int/cases?f%5B0%5D=state_of_%3A132