The Neuroscience of Trauma Supports Diminished Capacity as a Nuanced Approach to the ICC Case of an Ex-Child Soldier

Hiromoto, Lee,Siddiqui, Ramail,Sparr, Landy F. | June 7, 2023

The 2021 conviction of former child soldier Dominic Ongwen by the International Criminal Court (ICC) for war crimes committed as an adult commander in the Lord’s Resistance Army in Uganda raises questions about the ICC’s approach to mental illness.  During his trial, the defendant unsuccessfully raised defenses of insanity and duress, based on his kidnapping into the militant group as a child.  The court rejected not only those defenses, but also the claim that he had mental illness at all, in spite of his traumatic childhood.  Integrating scientific research, we argue that both the ICC and the defense failed to address the neuroscience of trauma.  But even if this evidence had been presented, the ICC’s all-or-nothing approach to mental illness would still leave outwardly functional trauma survivors in legal limbo.  On the one hand, such survivors may be too functional for the insanity defense.  At the same time, their activated fight-or-flight responses may cause them to perceive and react to threats in ways that the duress defense would not excuse as reasonable.  We propose that sentence mitigation based on diminished mental capacity provides a just and nuanced approach to the dilemma of a trauma victim turned perpetrator.