CLEVELAND — He has testified on Capitol Hill. He has been cited and interviewed in publications far and wide. But now, the co-dean of Case Western Reserve University’s School of Law will have the distinct opportunity rarely afforded to American attorneys: argue a case before the world’s highest criminal court, the International Criminal Court.
Michael Scharf, a preeminent expert in international law, will present a friend-of-the-court argument before the Appeals Chamber of the International Crimes Court (ICC) in The Hague on Monday, Feb. 14. The ICC investigates and tries people charged with crimes against humanity as well as the gravest crimes of concern to the international community, including genocide, war crimes, crimes of humanity and crimes of aggression. A total of 123 countries are members of the ICC.
Scharf will be presenting the appellate argument in the case of Dominic Ongwen, a brigadier general of the Lord’s Resistance Army, an extremist and insurgent group linked to alleged crimes against humanity across Uganda and the Democratic Republic of the Congo, among other African nations. The group was founded in 1987 by Joseph Kony, one of Africa’s most prolific and notorious warlords. The ICC filed arrested warrants under seal for Ongwen’s arrest in 2005.
As part of the LRA, Ongwen was accused of leading militant forces into villages, abducting children and massacring civilians. However, Ongwen’s story began long before his affiliation with the LRA. Around the age of 8, Ongwen was abducted by LRA forces and was subjected to forced indoctrination, including being forced to watch rituals of people being killed and tortured.
“[Ongwen is] the first person from this conflict to be prosecuted [by the ICC],” Scharf said. “His defense was, ‘look, I’ve done a lot of bad things in my life but I was a product of my kidnapping and my brainwashing. I have never been right.”
Last year, the ICC found Ongwen guilty. As part of his appellate argument, Scharf argues that the ICC’s statute regarding the burden of proof in an insanity defense is vague and runs contrary to the historical record behind the formation of the ICC. Instead, Scharf will argue that a defendant has met the evidentiary threshold of establishing an insanity defense, the burden of proof should shift to the prosecution.
“One of the things that we have done that nobody else did is that we dug into the negotiating record and we found all of these really hard to find little nuggets of history that are illuminating,” Scharf said Friday. “I explain that history and explain that this is the way the court is going to have to do it based on the statute and the history.”
The mere fact that outside counsel will be arguing before the ICC is a rarity. Even rarer still is the fact that Scharf, an American attorney, will be the one doing it. To label it as the legal equivalent to playing in the Super Bowl is a minor understatement.
“We’re one of the few countries in the world that are [not members of the ICC],” Scharf said. “Because of that, there are no American judges. There aren’t a lot of Americans that are on the staff of the court. It’s rare for an American to be invited to make an oral argument. My dream from the day that we left the U.S. State Department and started the [Public International Law and Policy Group] was to finally someday make an argument before an international tribunal. For U.S. constitutional scholars, this is like dreaming to be before the U.S. Supreme Court. This is like the Supreme Court for the world.”
The Public International Law and Policy Group is a global pro-bono legal firm that offers its services to help draft post-conflict constitutions, peace negotiations as well as war crimes prosecution.
Scharf received his invitation earlier this month, which set off a frenzied logistical challenge, which included securing international flights to the Netherlands and a COVID-19 test on Friday.
His oral argument could potentially become a landmark case for the ICC, reminiscent of some of the early landmark cases to be heard by the U.S. Supreme Court.
“It’s the first case of insanity before this court. It’s the case that is the Marbury vs Madison on the burden of proof,” Scharf said.